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Exhibit 4.7
EXECUTION COPY
LIQUIDITY AGREEMENT,
Dated as of June 7, 1995,
among
NATIONAL FLEET FUNDING CORPORATION.
CERTAIN FINANCIAL INSTITUTIONS,
as the Liquidity Lenders
and
CITIBANK, N.A.,
as the Liquidity Agent for
the Liquidity Lenders
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions ...................................... 2
SECTION 1.2. Cross-References.................................. 2
SECTION 1.3. Accounting and Financial Determinations;
No Duplication................................... 2
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes................ 3
SECTION 2.2. Conditions to the Issuance of Commercial
Paper Notes...................................... 4
SECTION 2.2.1. Representations and Warranties.................... 4
SECTION 2.2.2. No Amortization Event............................. 5
SECTION 2.2.3. Available Liquidity Commitment.................... 5
SECTION 2.2.4. No Borrowing Base Deficiency...................... 5
SECTION 2.2.5. Borrowing Base Certificate........................ 5
SECTION 2.2.6. Non-Prepayment of Loans........................... 5
SECTION 2.3. Commercial Paper Notes............................ 5
SECTION 2.4. Commercial Paper Account; Payment of Commercial
Paper Notes...................................... 6
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments............................. 6
SECTION 3.1.1. Revolving Advance Commitment...................... 7
SECTION 3.1.2. Refunding Advance Commitment...................... 7
SECTION 3.1.3. Swing Line Commitment............................. 7
SECTION 3.1.4. Use of Proceeds................................... 8
SECTION 3.2 Liquidity Lenders Not Required to Make Certain
Liquidity Advances............................... 8
SECTION 3.2.1. Revolving Advances................................ 8
SECTION 3.2.2. Refunding and Swing Line Advances................. 8
SECTION 3.2.3. Failure to Fund................................... 8
SECTION 3.3. Termination and Reduction of the Liquidity
Commitments...................................... 9
SECTION 3.4. Increase of the Aggregate Liquidity
Commitment....................................... 10
SECTION 3.5. Extensions of Scheduled Liquidity Commitment
Termination Date................................. 10
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SECTION 3.6. Borrowing Procedures.............................. 10
SECTION 3.6.1. Revolving Advances................................ 10
SECTION 3.6.2. Refunding Advances................................ 11
SECTION 3.6.3. Swing Line Advances............................... 12
SECTION 3.6.4. Commitment Termination Date Liquidity Advances.... 13
SECTION 3.6.5. Nature of Funding Obligations..................... 13
SECTION 3.6.6. Failure to Fund by Lender......................... 14
SECTION 3.7. Disbursement of Funds............................. 14
SECTION 3.8. Continuation and Conversion Elections............. 15
SECTION 3.9. LIBOR Funding..................................... 16
SECTION 3.10. Liquidity Advance Notes........................... 16
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments........................ 17
SECTION 4.1.1. Voluntary Prepayments............................. 17
SECTION 4.1.2. Mandatory Prepayments............................. 17
SECTION 4.2. Interest Provisions............................... 18
SECTION 4.2.1. Rates............................................. 18
SECTION 4.2.2. Post Default Rates................................ 19
SECTION 4.3. Payments of Interest.............................. 20
SECTION 4.4. Computation Basis................................. 20
SECTION 4.5. Fee............................................... 20
ARTICLE V
CERTAIN LIBOR AND OTHER PROVISIONS
SECTION 5.1. LIBOR Lending Unlawful............................ 21
SECTION 5.2. Deposits Unavailable.............................. 21
SECTION 5.3. Increased Costs, etc.............................. 22
SECTION 5.4. Funding Losses.................................... 22
SECTION 5.5. Increased Capital Costs........................... 23
SECTION 5.6. Taxes............................................. 24
SECTION 5.7. Payments, Computations, etc....................... 25
SECTION 5.8. Sharing of Payments............................... 26
SECTION 5.9. Replacement of Liquidity Lenders.................. 27
SECTION 5.10. Order and Priority................................ 28
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness....................... 28
SECTION 6.1.1. Organic Documents, Resolutions.................... 28
SECTION 6.1.2. Liquidity Agreement............................... 29
SECTION 6.1.3. Liquidity Advance Notes........................... 29
SECTION 6.1.4. Master Collateral Agency Agreement; Collateral
Sharing Agreement and Collateral Agreement....... 29
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SECTION 6.1.5. Loan Agreement.................................... 30
SECTION 6.1.6. Letter of Credit Agreements....................... 30
SECTION 6.1.7. Depositary Agreement.............................. 30
SECTION 6.1.8. Dealer Agreement; Placement Agency Agreement...... 31
SECTION 6.1.9. Closing Date Certificate.......................... 31
SECTION 6.1.10. Accounts.......................................... 31
SECTION 6.1.11. Rating Letters.................................... 31
SECTION 6.1.12. Vehicles, Repurchase Programs, etc................ 31
SECTION 6.1.13. Assignments....................................... 32
SECTION 6.1.14. Board of Directors................................ 32
SECTION 6.1.15. Solvency Certificates............................. 32
SECTION 6.1.16. Closing Fees and Expenses......................... 32
SECTION 6.1.17. Certified Copy of Repurchase Program.............. 32
SECTION 6.1.18. Opinions.......................................... 32
SECTION 6.1.19. Notation of Liens................................. 32
SECTION 6.1.20. Offering Materials................................ 33
SECTION 6.1.21. Satisfactory Legal Form........................... 33
SECTION 6.1.22. Credit Rating of Initial Liquidity Lenders........ 33
SECTION 6.1.23. Vehicle Title Nominee Agreement; GM Guaranty...... 33
SECTION 6.1.24. Assignment of GMAC Lien; Filing of UCC
Termination Statements........................... 33
SECTION 6.2. Conditions to the Making of Each Revolving
Advance.......................................... 34
SECTION 6.2.1. Representations and Warranties.................... 34
SECTION 6.2.2. No Amortization Event; Loan Event of Default...... 34
SECTION 6.2.3. No Borrowing Base Deficiency...................... 34
SECTION 6.2.4. Availability...................................... 34
SECTION 6.2.5. Attachments....................................... 35
SECTION 6.2.6. Receipt of Monthly Report......................... 35
SECTION 6.2.7. Borrowing Request................................. 35
SECTION 6.2.8. Borrowing Base Certificate........................ 35
SECTION 6.3. Conditions Precedent to the Making of
Each Refunding Advance........................... 35
SECTION 6.3.1. No Bankruptcy..................................... 35
SECTION 6.3.2. Availability...................................... 36
SECTION 6.3.3. No Borrowing Base Deficiency...................... 36
SECTION 6.3.4. Borrowing Request................................. 36
SECTION 6.3.5. Borrowing Base Certificate........................ 36
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Existence and Power............................... 36
SECTION 7.2. Authorization..................................... 37
SECTION 7.3. Binding Effect.................................... 37
SECTION 7.4. Financial Information; Financial Condition........ 37
SECTION 7.5. Litigation........................................ 37
SECTION 7.6. No ERISA Plan..................................... 38
SECTION 7.7. Tax Filings and Expenses.......................... 38
SECTION 7.8. Disclosure........................................ 38
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SECTION 7.9. Investment Company Act; Securities Act............ 38
SECTION 7.10. Margin Regulations................................ 38
SECTION 7.11. No Consent........................................ 38
SECTION 7.12. No Violation of Laws, etc......................... 39
SECTION 7.13. Ownership; Subsidiaries........................... 39
SECTION 7.14. Solvency.......................................... 39
SECTION 7.15. No Security Interest.............................. 39
SECTION 7.16. Repurchase Programs............................... 40
SECTION 7.17. Other Representations............................. 40
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants............................. 40
SECTION 8.1.1. Information....................................... 40
SECTION 8.1.2. Compliance with Covenants......................... 42
SECTION 8.1.3. Payment of Obligations............................ 42
SECTION 8.1.4. [Reserved]........................................ 42
SECTION 8.1.5. Maintenance of Existence.......................... 42
SECTION 8.1.6. Compliance with Laws.............................. 42
SECTION 8.1.7. Inspection of Property, Books and Records......... 42
SECTION 8.1.8. Absence of Certain Actions........................ 42
SECTION 8.1.9. Notice of Default................................. 43
SECTION 8.1.10. Notice of Material Proceedings.................... 43
SECTION 8.1.11. Further Requests.................................. 43
SECTION 8.1.12. [Reserved]........................................ 43
SECTION 8.1.13. Further Assurances................................ 43
SECTION 8.1.14. Repurchase Programs............................... 43
SECTION 8.1.15. Use of Proceeds of Commercial Paper Notes......... 44
SECTION 8.1.16. Vehicles.......................................... 44
SECTION 8.2. Negative Covenants................................ 44
SECTION 8.2.1. Liens............................................. 44
SECTION 8.2.2. Other Indebtedness................................ 44
SECTION 8.2.3. Consolidations and Mergers........................ 45
SECTION 8.2.4. Sales of Assets................................... 45
SECTION 8.2.5. Acquisition of Assets............................. 45
SECTION 8.2.6. Dividends, Officers' Compensation, etc............ 45
SECTION 8.2.7. Name; Chief Executive Office...................... 45
SECTION 8.2.8. Organic Documents................................. 45
SECTION 8.2.9. Investments....................................... 45
SECTION 8.2.10. No Other Agreements; Amendments to Related
Documents........................................ 45
SECTION 8.2.11. Other Business.................................... 46
SECTION 8.2.12. Maintenance of Separate Existence................. 46
SECTION 8.2.13. Offering Document................................. 47
ARTICLE IX
AMORTIZATION EVENTS
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SECTION 9.1. Amortization Event................................ 48
SECTION 9.1.1. Non-Payment of Obligations........................ 48
SECTION 9.1.2. Breach of Warranty................................ 48
SECTION 9.1.3. Non-Performance of Other Covenants and
Obligations...................................... 48
SECTION 9.1.4. Non-Performance of Other Covenants and
Obligations...................................... 49
SECTION 9.1.5. [Reserved]........................................ 49
SECTION 9.1.6. Judgments........................................ 49
SECTION 9.1.7. Bankruptcy, Insolvency, etc....................... 49
SECTION 9.1.8. Letters of Credit................................. 49
SECTION 9.1.9. Insolvency of Fronting Credit Enhancers........... 49
SECTION 9.1.10. Independent Directors............................. 50
SECTION 9.1.11. Enforceability of or Default under Related
Documents........................................ 50
SECTION 9.1.12. Investment Company................................ 50
SECTION 9.1.13. Termination of Loan Commitment.................... 50
SECTION 9.1.14. Program Downgrade................................. 50
SECTION 9.1.15. Termination of Liquidity Commitments or
Reduction of Aggregate Liquidity Commitment...... 50
SECTION 9.2. Action if Amortization Event...................... 50
SECTION 9.3. Limited Amortization Events .........................51
SECTION 9.3.1. Ineligibility of Manufacturer or
Repurchase Program............................... 52
SECTION 9.3.2. Termination of Liquidity Commitment............... 52
SECTION 9.3.3. Rating Downgrade of Liquidity Lender.............. 52
SECTION 9.4. Action Upon Limited Amortization Event............ 52
ARTICLE X
THE LIQUIDITY AGENT
SECTION 10.1. Actions........................................... 53
SECTION 10.2. Collateral Agreement.............................. 54
SECTION 10.3. Exculpation....................................... 54
SECTION 10.4. Successor......................................... 55
SECTION 10.5. Liquidity Advances by Citibank.................... 55
SECTION 10.6. Credit Decisions.................................. 56
SECTION 10.7. Copies, etc....................................... 56
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.......................... 56
SECTION 11.2. Notices........................................... 58
SECTION 11.3. Payment of Costs and Expenses..................... 59
SECTION 11.4. Indemnification................................... 60
SECTION 11.5. Survival.......................................... 61
SECTION 11.6. Severability...................................... 61
SECTION 11.7. Headings.......................................... 61
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SECTION 11.8. Execution in Counterparts........................ 61
SECTION 11.9. Governing Law; Entire Agreement.................. 61
SECTION 11.10. Successors and Assigns........................... 61
SECTION 11.11. Sale and Transfer of Liquidity Advances
and Notes; Participations in Loans and Notes.... 62
SECTION 11.11.1. Assignments..................................... 62
SECTION 11.11.2. Participations.................................. 64
SECTION 11.12. Other Transactions............................... 65
SECTION 11.13. Bankruptcy Petition Against NFC.................. 65
SECTION 11.14. Limited Recourse to NFC; No Recourse............. 66
SECTION 11.15. Survival of Representations and Warranties....... 66
SECTION 11.16. Confidentiality.................................. 66
SECTION 11.17. Jurisdiction; Consent to Service of Process...... 67
SECTION 11.18. Waiver of Jury Trial............................. 68
SECTION 11.19. Waiver of Set-Off................................ 68
EXHIBITS
EXHIBIT A - Form of Revolving Liquidity Advance Note
EXHIBIT B - Form of Refunding Liquidity Advance Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - [Reserved]
EXHIBIT F - Form of Liquidity Lender Assignment
Agreement
EXHIBIT G - Form of Closing Date Certificate
EXHIBIT H - Form of Loan Agreement
EXHIBIT I-1 - [Reserved]
EXHIBIT I-2 - Form of A Support Letter of Credit
Agreement
EXHIBIT I-3 - Form of A Support Reimbursement Agreement
EXHIBIT I-4 - Form of B Letter of Credit Reimbursement
Agreement
EXHIBIT I-5 - Form of B Support Letter of Credit
Reimbursement Agreement
EXHIBIT J - Form of Collateral Agreement
EXHIBIT K - Form of Depositary Agreement
EXHIBIT L - Form of Dealer Agreement
EXHIBIT M - Form of Liquidity Commitment Agreement
EXHIBIT N - Form of Placement Agency Agreement
ANNEXES
ANNEX A - Definitions
ANNEX B - Disclosure Materials
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LIQUIDITY AGREEMENT
THIS LIQUIDITY AGREEMENT, dated as of June 7, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, this
"Liquidity Agreements"), among NATIONAL FLEET FUNDING CORPORATION, a
Delaware corporation ("NFC"), the financial institutions listed on the
signature pages hereof under the heading "Liquidity Lenders (each such
financial institution, together with each of the financial institutions
that has become party hereto pursuant to Section 11.11.1, including any
such financial institution acting in the capacity of Swing Line Lender,
being a "Liquidity Lender" and, collectively, the "Liquidity Lenders")
and CITIBANK, N.A., a national banking association ("Citibank"), as
liquidity agent (in such capacity, together with any successors and
assigns thereto, the "Liquidity Agent") for the Liquidity Lenders.
WITNESSETH:
WHEREAS, NFC proposes to make Loans (such capitalized term,
together with all other capitalized terms used herein, shall have the
meaning assigned thereto in Section 1.1) to National pursuant to the Loan
Agreement, the proceeds of which are to be used by National to purchase
Vehicles from authorized dealers of Manufacturers or to finance vehicles
previously purchased by National;
WHEREAS, National proposes to assign to the Master Collateral
Agent for the benefit of NFC, with the acknowledgement of each
Manufacturer, all of its right, title and interest in and to certain
rights under Repurchase Programs of such Manufacturer as such Repurchase
Programs relate to the Vehicles;
WHEREAS, NFC proposes to issue and sell its Commercial Paper Notes
in the commercial paper market and use the net proceeds thereof to, among
other things, make Loans;
WHEREAS, NFC desires to obtain Liquidity Commitments from the
Liquidity Lenders to make Liquidity Advances in an aggregate principal
amount not to exceed the Aggregate Liquidity Commitment at any one time
outstanding to NFC from time to time prior to the Liquidity Commitment
Termination Date; and
WHEREAS, the Liquidity Lenders are willing, on the terms and
subject to the conditions hereinafter set forth (including Article VI),
to provide such Liquidity Commitments and make such Liquidity Advances to
NFC;
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions. Capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the
meanings assigned to such terms in the Definitions List, dated as of June
7, 1995 and annexed hereto as Annex A, as such Definitions List may be
amended or modified from time to time in accordance with the provisions
hereof (the Definitions List" ) .
SECTION 1.2. Cross-References. Unless otherwise specified,
references in this Liquidity Agreement and in each other Related Document
to any Article or Section are references to such Article or Section of
this Liquidity Agreement or such other Related Document, as the case may
be, and, unless otherwise specified, references in any Article, Section
or definition to any clause are references to such clause of such
Article, Section or definition.
SECTION 1.3. Accounting and Financial Determinations; No
Duplication. Unless otherwise specified, (i) all accounting terms used
herein shall be interpreted, all accounting determinations and
computations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in conformity with
GAAP, and (ii) all accounting determinations and computations hereunder
or under any other Related Documents shall be made without duplication;
provided, that if any change in GAAP in itself materially affects any
such determination, computation or financial statement, NFC may by notice
to the Liquidity Agent and the Agent, or alternatively the Liquidity
Agent or the Agent may by notice to NFC, require that any such
determination, computation or financial statement thereafter be made in
accordance with GAAP as in effect, and applied by NFC, immediately before
such change in GAAP occurs. Each of the Liquidity Agent, NFC and the
Agent agrees to enter into negotiations in good faith to modify the
financial representations and covenants and other applicable provisions
contained herein in a manner which reflects any such change in GAAP
without adversely affecting the rights of the Liquidity Agent, the
Liquidity Lenders and the Agent.
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ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes. On the terms and
subject to the provisions of this Liquidity Agreement and the other
Related Documents, NFC may from time to time on or after the Closing Date
and prior to the Liquidity Commitment Termination Date, issue and sell
Commercial Paper Notes; provided, however, that NFC shall not issue and
sell Commercial Paper Notes if
(a) NFC and the Depositary have received instructions
then in effect from the Liquidity Agent (copies of which will also
be sent to the Placement Agents and the Dealers), given in
accordance with this Section 2.1, not to issue or deliver
Commercial Paper Notes because (i) the Liquidity Commitment
Termination Date shall have occurred, or (ii) the Commercial Paper
Account or any funds on deposit in, or otherwise to the credit of,
the Commercial Paper Account shall be subject to any stay, writ,
judgment, warrant of attachment, execution or similar process;
provided, however, that if any such stay, writ, judgment, warrant
of attachment, execution or similar process is removed or
dismissed, NFC may recommence the issuance and sale of Commercial
Paper Notes,
(b) the issuance of Commercial Paper Notes is prohibited
by Sections 2.1, 2.2, 9.2 or 9.4 hereof, Sections 3 or 10 of the
Depositary Agreement or Section 5.01 of the Collateral Agreement,
(c) after giving effect to such issuance and the use of
proceeds thereof, Aggregate Outstandings would exceed the
Borrowing Base,
(d) after giving effect to such issuance and the use of
proceeds thereof, the weighted average interest rate of the
Outstanding Commercial Paper Notes, Liquidity Advances and Support
Liquidity Disbursements would be in excess of 10% per annum,
unless (i) NFC and the Liquidity Agent shall have given their
written consent to a weighted average interest rate in excess of
10% per annum, (ii) the Fronting Letter of Credit Amount shall be
increased if required by the Rating Agencies in connection
therewith and (iii) the Rating Agencies shall have confirmed that
such weighted average interest rate will not result in the
downgrading or withdrawal of the then current ratings of the
Commercial Paper Notes; provided, however, that if the ratings of
the Commercial Paper Notes by S&P and Moody's will be less than
A-1 and P-1, respectively, after giving effect to such
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weighted average interest rate in excess of 10% per Annum, such
Commercial Paper Notes will not be issued unless the Majority
Banks shall have given their written consent thereto, or
(e) NFC and the Depositary shall have received
instructions then in effect from the Liquidity Agent not to issue
or deliver Commercial Paper Notes because any of the conditions
set forth in clauses (b) through (d) of this Section 2.1 shall be
true.
The Liquidity Agent shall have no obligation to deliver any instructions
set forth in clause (a) or clause (e) of this Section 2.1 except upon the
instructions of the Majority Banks and any delivery by the Liquidity
Agent of any such instructions shall be subject to the provisions of
Section 10.3 and the rights of the Liquidity Agent hereunder and shall
not relieve NFC, the Agent or the Depositary of any of their respective
obligations under any Related Document or with respect to the issuance of
Commercial Paper Notes. Any instructions from the Liquidity Agent to NFC
and the Depositary in accordance with clause (a) or clause (e) of this
Section 2.1 shall specify the reason(s) to cease issuing and delivering
Commercial Paper Notes. Without prior instruction as set forth above, the
Liquidity Agent agrees that it shall only instruct NFC and the Depositary
not to issue and sell Commercial Paper Notes if there shall have occurred
an event described in subclause (i) of clause (a) of this Section 2.1.
Concurrently with the giving of any such instructions to NFC and the
Depositary, the Liquidity Agent shall give notice thereof to the
Liquidity Lenders, the Agent, the Placement Agents, the Dealers, and the
rating agency or agencies known to it to have provided investment ratings
with respect to the Commercial Paper Notes, but failure to do so shall
not impair the effect of such instructions and the giving of such notice
shall be subject to Section 10.3.
SECTION 2.2. Conditions to the Issuance of Commercial Paper Notes.
The right of NFC to issue Commercial Paper Notes (whether such Commercial
Paper Notes are to be issued to refinance Commercial Paper Notes maturing
on the day such Commercial Paper Notes are to be issued or to increase
the Aggregate Face Amount over that of the preceding day) is subject to
the satisfaction of the following conditions:
SECTION 2.2.1. Representations and Warranties. With respect to the
issuance of any Commercial Paper Note and after giving effect thereto,
the representations and warranties of NFC set forth in Article VII
hereof, or in any other Related Document to which NFC is a party, shall
be true and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materiality
limitation in their
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terms) with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct (in all material respects to the
extent any such representations and warranties do not incorporate a
materiality limitation in their terms) as of such earlier date).
SECTION 2.2.2. No Amortization Event. (a) At the time of such
issuance and after giving effect thereto, no Amortization Event (and no
Potential Amortization Event with respect to NFC under Section 9.1.7 and,
in the case of any increase in the Aggregate Face Amount over that of the
day preceding the day of such issuance, no other Potential Amortization
Event) shall have occurred and be continuing.
(b) Such issuance of Commercial Paper Notes shall not be
prohibited by Section 9.4.
SECTION 2.2.3. Available Liquidity Commitment. At the time of the
issuance of each Commercial Paper Note and after giving effect thereto
and to the use of proceeds thereof on such day, the sum of the Aggregate
Liquidity Commitment and the Fronting Letter of Credit Amount shall be
equal to or greater than the sum of the Aggregate Outstanding CP and the
aggregate principal amount of Liquidity Advances Outstanding net of any
amounts on deposit at such time in the Collateral Account set aside for
the repayment of the principal of Liquidity Advances.
SECTION 2.2.4. No Borrowing Base Deficiency. With respect to the
issuance of any Commercial Paper Note, a Borrowing Base Deficiency shall
not exist and the issuance of such Commercial Paper Note, after giving
effect to the repayment of any Commercial Paper Notes, Liquidity Advances
and Support Liquidity Disbursements made with the proceeds thereof, would
not result in a Borrowing Base Deficiency.
SECTION 2.2.5. Borrowing Base Certificate. The Liquidity Agent
shall have received an Officer's Certificate, dated the date of such
issuance, duly executed and delivered by an Authorized Officer of NFC,
certifying the amount of the Borrowing Base as of the close of business
of the day immediately preceding such date.
SECTION 2.2.6. Non-Payment of Loans. At the time of such issuance
and after giving effect thereto, no Potential Loan Event of Default under
Section 12.1.1 of the Loan Agreement shall have occurred and be
continuing.
SECTION 2.3. Commercial Paper Notes. NFC agrees that each
promissory note constituting Commercial Paper Notes shall (a) be
substantially in the form of Exhibit A to the Depositary
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Agreement or in the form of the Master Note attached to the Depositary
Agreement, and be completed in accordance with this Liquidity Agreement
and the Depositary Agreement (including any provisions for book-entry
securities contained therein), (b) be dated the date of issuance thereof,
(c) be made payable to the order of a named payee or bearer, (d) have a
maturity date which shall not be later than the earlier of (i) three
Business Days prior to the earliest of the Scheduled Liquidity Commitment
Termination Date, the A Letter of Credit Expiration Date and the B Letter
of Credit Expiration Date in effect on the date of issuance thereof and
(ii) the date which is 58 days after the date of issuance thereof, (e) be
in a face amount of at least $100,000 and an integral multiple of $1,000,
and (f) be exempt from the registration requirements of the Securities
Act of 1933, as amended, pursuant to Section 3(a)(3) thereof. Subject to
the provisions of the Depositary Agreement, all Commercial Paper Notes
shall be delivered and issued against payment therefor in immediately
available funds on the date of issuance, and otherwise in accordance with
the terms of this Liquidity Agreement and the Depositary Agreement.
SECTION 2.4. Commercial Paper Account: Payment of Commercial Paper
Notes. (a) Contemporaneously with the execution and delivery by NFC of
the Depositary Agreement, and for the purposes of this Liquidity
Agreement and the Depositary Agreement, NFC shall cause the Depositary to
establish at its office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, a segregated trust account in its corporate trust department
for the exclusive benefit of the Holders of the outstanding Commercial
Paper Notes (the "Commercial Paper Accounts"), over which the Depositary
shall have exclusive control and sole right of withdrawal.
(b) Proceeds of the sale of Commercial Paper Notes shall be
deposited in the Commercial Paper Account only to the extent necessary to
pay matured and concurrently maturing Commercial Paper Notes, whether or
not presented to the Depositary for payment; otherwise proceeds of the
sale of Commercial Paper Notes shall be applied according to the terms of
the Collateral Agreement.
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments. Subject to and in accordance
with the terms and the conditions of this Liquidity Agreement (including
Article VI), each Liquidity Lender severally and not jointly agrees to
make Revolving Advances and Refunding
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Advances, and the Swing Line Lender agrees to make Swing Line Advances
(relative to such Liquidity Lender, or to the Swing Line Lender, as the
case may be, collectively, together with its Commitment Termination Date
Liquidity Advance, its "Liquidity Advances"), to NFC pursuant to this
Section 3.1.
SECTION 3.1.1. Revolving Advance Commitment. Subject to and in
accordance with the terms and conditions hereof (including, without
limitation, the terms and conditions set forth in Section 6.2), each
Liquidity Lender severally and not jointly agrees to make, from time to
time, on or before the earlier to occur of such Liquidity Lender's
Scheduled Liquidity Commitment Termination Date and the Revolving Advance
Commitment Termination Date, advances for the purposes set forth in
Section 3.1.4(a) (relative to such Liquidity Lender, its "Revolving
Advances") to NFC equal to such Liquidity Lender's Percentage of the
aggregate amount of the Borrowing of Revolving Advances requested by NFC
to be made on such day. On the terms and subject to the conditions
hereof, NFC may from time to time borrow, prepay and reborrow Revolving
Advances.
SECTION 3.1.2. Refunding Advance Commitment. Subject to and in
accordance with the terms and conditions hereof (including, without
limitation, the terms and conditions set forth in Section 6.3), each
Liquidity Lender severally and not jointly agrees to make, from time to
time, on or before such Liquidity Lender's Liquidity Commitment
Termination Date, advances for the purposes set forth in Section 3.1.4(b)
(relative to such Liquidity Lender (including its Commitment Termination
Date Liquidity Advance), its "Refunding Advances") to NFC equal to (a) in
the case of Refunding Advances (other than any Commitment Termination
Date Liquidity Advance), such Liquidity Lender's Percentage of the
aggregate amount of the Borrowing of Refunding Advances requested by NFC
or the Agent, as attorney-in-fact for NFC, to be made on such day, and
(b) in the case of Commitment Termination Date Liquidity Advances, such
Liquidity Lender's Overall Percentage of the Aggregate Face Amount on
the date of such Commitment Termination Date Liquidity Advance. On the
terms and subject to the conditions hereof, NFC may from time to time
borrow, prepay and reborrow Refunding Advances (other than Commitment
Termination Date Liquidity Advances).
SECTION 3.1.3. Swing Line Commitment. Subject to and in accordance
with the terms and conditions hereof (including, without limitation, the
terms and conditions set forth in Section 6.3), the Swing Line Lender
agrees to make, from time to time, on or before such Liquidity Lender's
Liquidity Commitment Termination Date, Swing Line Advances equal to the
aggregate amount of the Borrowing of Swing Line Advances requested by NFC
or the Agent, as attorney-in-fact for NFC, to be made on such day. On the
terms and subject to the conditions hereof, NFC may
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from time to time borrow, prepay and reborrow Swing Line Advances.
SECTION 3.1.4. Use of Proceeds. Proceeds from the Liquidity
Advances shall be applied by NFC as follows:
(a) Proceeds from each Revolving Advance shall be used
by NFC to: (i) make Loans pursuant to the Loan Agreement or (ii)
to repay matured Liquidity Advances (other than any Commitment
Termination Date Liquidity Advance).
(b) Proceeds of each Refunding Advance and each Swing
Line Advance shall be deposited by NFC into the Commercial Paper
Account and proceeds of each Commitment Termination Date Liquidity
Advance shall be deposited by NFC into the Termination Advance
Account, in each case, for the repayment of maturing Commercial
Paper Notes.
NFC shall not use the proceeds of any Liquidity Advance for any other
purpose.
SECTION 3.2. Liquidity Lenders Not Required to Make Certain
Liquidity Advances.
SECTION 3.2.1. Revolving Advances. No Liquidity Lender shall be
required to make a Revolving Advance to the extent that if after giving
effect to such Revolving Advance, (i) the aggregate principal amount of
all Liquidity Advances (including any Swing Line Advances) Outstanding
would exceed the Aggregate Liquidity Commitment, or (ii) the aggregate
principal amount of such Liquidity Lender's Liquidity Advances
(including, in the case of the Swing Line Lender, any Swing Line
Advances) Outstanding would exceed such Liquidity Lender's Liquidity
Commitment.
SECTION 3.2.2. Refunding and Swing Line Advances. No Liquidity
Lender shall be required to make a Refunding Advance (including, in the
case of the Swing Line Lender, a Swing Line Advance) to the extent that
if after giving effect to such Refunding Advance (or Swing Line Advance,
as the case may be), (i) the aggregate principal amount of all Liquidity
Advances (including any Swing Line Advances) Outstanding would exceed the
Aggregate Liquidity Commitment or (ii) the aggregate principal amount of
such Liquidity Lender's Liquidity Advances (including, in the case of the
Swing Line Lender, any Swing Line Advances) Outstanding would exceed such
Liquidity Lender's Liquidity Commitment.
SECTION 3.2.3. Failure To Fund. The provisions of this Section
3.2.3 shall only be operative at any time when the number of Liquidity
Lenders whose respective Liquidity Commitments have
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not expired or been terminated and the number of Fronting Credit
Enhancers whose respective Credit Enhancer Commitments have not expired
shall exceed 10 in the aggregate.
Subject to Sections 3.2.1 and 3.2.2, in the event that one or more
Liquidity Lenders fails to fund its or their Percentage of the Liquidity
Advances to be provided by the Liquidity Lenders by 2:00 p.m., New York
City time, on any Business Day (other than a Commitment Termination Date
Liquidity Advance or a Revolving Advance the proceeds of which are to be
used to repay maturing Liquidity Advances), the Liquidity Agent shall
notify each of the other Liquidity Lenders not later than 3:00 p.m., New
York City time, on such Business Day and each of the other Liquidity
Lenders shall, before 5:00 p.m., New York City time, on such Business
Day, make available to the Liquidity Agent at the Liquidity Agent's
address specified for such purpose, in immediately available funds, a
Liquidity Advance in a principal amount equal to such unfunded amount
multiplied by a fraction, the numerator of which is the Liquidity
Commitment of such Liquidity Lender and the denominator of which is the
Aggregate Liquidity Commitment (less the Liquidity Commitments of the
defaulting Liquidity Lenders). After the Liquidity Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article VI, the Liquidity Agent will make such funds available to NFC by
5:45 p.m., New York City time. Any Liquidity Advance made pursuant to
this Section 3.2.3 shall be a Base Rate Advance subject to conversion in
accordance with the provisions of Section 3.8 hereof.
SECTION 3.3. Termination and Reduction of the Liquidity
Commitments. (a) NFC may, upon at least three Business Days' prior
written notice to the Liquidity Agent (who shall give prompt written
notice thereof to each Liquidity Lender, the Dealers and the Depositary),
irrevocably terminate or reduce ratably in part the Aggregate Liquidity
Commitment; provided, however, that the Aggregate Liquidity Commitment
shall not be reduced on any day in an amount such that the Aggregate
Liquidity Commitment would be less than the sum of (i)(x) the Aggregate
Outstanding CP on such day, less (y) the Fronting Letter of Credit
Amount, plus (ii) the aggregate principal amount of all Liquidity
Advances (including any Swing Line Advances) Outstanding (other than
Commitment Termination Date Liquidity Advances) on such day net of any
amounts on deposit on such day in the Collateral Account set aside for
the repayment of the principal of Liquidity Advances; provided, further,
that any partial reduction shall be at least $5,000,000 and in an
integral multiple of $1,000,000. Any such reduction of the Aggregate
Liquidity Commitment shall reduce ratably the Liquidity Commitment of
each Liquidity Lender.
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(b) The Liquidity Agent shall give notice to the Placement
Agents and the Dealers as to any change in the Aggregate Liquidity
Commitment promptly after any reduction thereof.
(c) No termination or reduction of the Aggregate Liquidity
Commitment by NFC pursuant to this Section 3.3 shall be effective unless
the Liquidity Agent or NFC shall have given notice to S&P and Moody's of
such termination or reduction.
SECTION 3.4. Increase of the Aggregate Liquidity Commitment. The
Aggregate Liquidity Commitment may be increased from time to time to an
amount greater than the amount of the Aggregate Liquidity Commitment on
the Closing Date through the increase of a Liquidity Lender's Liquidity
Commitment or the addition of one or more Eligible Liquidity Lenders as a
party to this Liquidity Agreement; provided, however, that no such
increase shall become effective unless all of the following conditions
shall have been satisfied:
(a) NFC and the Liquidity Agent shall have given their
written consent thereto;
(b) such Liquidity Lender or Eligible Liquidity Lender,
as the case may be, and NFC shall have executed and delivered to
the Liquidity Agent a Liquidity Commitment Agreement;
(c) the Fronting Letter of Credit Amount shall be
increased to the Required Enhancement Amount immediately after
giving effect to the increase in the Aggregate Liquidity
Commitment; and
(d) the Rating Agencies confirm in writing that such
increase in the Aggregate Liquidity Commitment will not result in
the downgrading below A-1 by S&P and P-1 by Moody's or withdrawal
of the ratings of the Commercial Paper Notes.
SECTION 3.5. Extensions of Scheduled Liquidity Commitment
Termination Date. Each Liquidity Lender's Scheduled Liquidity Commitment
Termination Date may be extended from time to time by a written agreement
among NFC, such Liquidity Lender and the Liquidity Agent.
SECTION 3.6. Borrowing Procedures. Borrowings of Revolving
Advances, Refunding Advances, Commitment Termination Date Liquidity
Advances and Swing Line Advances shall be made in accordance with this
Section 3.6.
SECTION 3.6.1. Revolving Advances. By delivering a Borrowing
Request to the Liquidity Agent for a borrowing
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consisting of Revolving Advances, which will be accompanied by telephonic
notification, NFC may irrevocably request, (a) in the case of LIBOR
Advances, not later than 11:15 a.m., New York City time, on not less than
three nor more than five Business Days, prior notice, that a Borrowing be
made in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, or (b) in the case of Base Rate Advances, not later than
11:30 a.m., New York City time, on the date of such borrowing and, in any
case, on not more than five Business Days' prior notice (which notice
shall be given in writing), that a Borrowing be made in a minimum amount
of $5,000,000 and an integral multiple of $1,000,000. On the terms and
subject to the conditions of this Liquidity Agreement, each such
Borrowing shall be comprised of Liquidity Advances of the same type (and,
in the case of LIBOR Advances, shall have same Interest Period), and
shall be made on the Business Day, specified in such Borrowing Request.
SECTION 3.6.2. Refunding Advances. Upon receipt from the
Depositary of notice (not later than 11:15 a.m., New York City time)
pursuant to Section 5(b) of the Depositary Agreement that, on any
Business Day that any Commercial Paper Notes mature, the amount required
to pay in full all Commercial Paper Notes maturing on such Business Day
will be more than the net amount obtained by the issuance of Commercial
Paper Notes on such day plus the amount available for payment of such
Commercial Paper Notes in the Commercial Paper Account (the amount of
such excess, the "Commercial Paper Deficit"), the Agent shall, if such
notice contains an instruction from the Depositary to the Agent to
deliver a Borrowing Request, by delivering a Borrowing Request to the
Liquidity Agent (who will notify the other Liquidity Lenders of such
Borrowing Request not later than 12:00 noon, New York City time) for a
Borrowing consisting of Refunding Advances, irrevocably request, not
later than 11:30 a.m., New York City time, on the date of a proposed
Borrowing, that a Borrowing be made in an aggregate principal amount
equal to the excess of (i) the Commercial Paper Deficit over (ii) the sum
of the aggregate amount, if any, applied or to be applied on such
Business Day to the Commercial Paper Deficit from amounts available
therefor in the Collateral Account and the Termination Advance Account
that are allocated to the payment of maturing Commercial Paper Notes and
from the proceeds of Swing Line Advances being made on such day. On the
terms and subject to the conditions of this Liquidity Agreement, each
such Borrowing shall be initially comprised of Base Rate Advances
(subject to conversion in accordance with the provisions of Section 3.8)
and shall be made on the Business Day specified in such Borrowing
Request. For the purposes of this Section, Commercial Paper Notes
maturing on any day which have been paid from an advance made by the
Depositary shall nonetheless be deemed to be unpaid.
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SECTION 3.6.3. Swing Line Advances. If on any Business Day that
NFC or the Agent, as the case may be, determines that there exists a
Commercial Paper Deficit, and the excess of such Commercial Paper Deficit
over the sum of the aggregate amount, if any, applied or to be applied on
such Business Day to the Commercial Paper Deficit from amounts available
therefor in the Collateral Account and the Termination Advance Account
that are allocated to the payment of maturing Commercial Paper Notes is
equal to or less than $5,000,000, NFC or the Agent, as the case may be,
shall promptly (and in no case later than 10:30 a.m. on the date of such
discovery) notify the Depositary of such Commercial Paper Deficit and NFC
or the Agent, as attorney-infact for NFC, may, or the Agent, upon the
instruction of the Depositary pursuant to Section 5(b) of the Depositary
Agreement, shall by delivering a Borrowing Request to the Liquidity Agent
for forwarding to the Swing Line Lender for a Borrowing consisting of a
Swing Line Advance, irrevocably request, not later than 11:30 a.m., New
York City time, on the date of a proposed Borrowing, that a Borrowing be
made in an aggregate principal amount equal to the least of
(a) $5,000,000 minus the aggregate principal amount of
all Swing Line Advances then outstanding;
(b) the excess, if any, of the Swing Line Lenders
Liquidity Commitment as a Liquidity Lender over the aggregate
principal amount of all of its Liquidity Advances Outstanding on
the date of such proposed Borrowing (without giving effect to such
proposed Borrowing); and
(c) the excess of the Commercial Paper Deficit over the
sum of the aggregate amount, if any, applied or to be applied on
such Business Day to the Commercial Paper Deficit from amounts
available therefor in the Collateral Account and the Termination
Advance Account that are allocated to the payment of maturing
Commercial Paper Notes.
On the terms and subject to the conditions of this Liquidity Agreement,
each such Borrowing shall be a Base Rate Advance (subject to conversion
in accordance with the provisions of Section 3.8), and shall be made on
the Business Day specified i such Borrowing Request. For the purposes of
this Section, Commercial Paper Notes maturing on any day which have been
paid from an advance made by the Depositary that has not been reimbursed
shall nonetheless be deemed to be unpaid. If, after giving effect to any
Swing Line Advance requested pursuant to this Section 3.6.3 (provided
that the conditions thereto set forth in Section 6.3 are satisfied), (a)
the aggregate principal amount of Swing Line Advances would be greater
than $5,000,000, or (b) the aggregate principal amount of Swing Line
Advances is less than or equal to $5,000,000 and such Swing Line Advances
are
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not repaid within five Business Days or (c) the aggregate principal
amount of all Liquidity Advances Outstanding made by the Swing Line
Lender would exceed its Liquidity Commitment, then in any such case each
Liquidity Lender shall immediately and unconditionally, upon written
notice thereof by the Swing Line Lender, make Liquidity Advances to NFC,
the proceeds of which will be applied to the repayment of Swing Line
Advances made by the Swing Line Lender, in an amount equal to such
Liquidity Lender's Percentage of the aggregate principal amount of the
Swing Line Advances Outstanding. Notwithstanding Section 6.3, the
obligation of the Liquidity Lenders to make Liquidity Advances under this
Section 3.6.3 shall be unconditional. The Swing Line Advances and
Liquidity Advances made pursuant to this Section 3.6.3 shall be comprised
of Base Rate Advances, subject to conversion in accordance with the
provisions of Section 3.8 hereof.
SECTION 3.6.4. Commitment Termination Date Liquidity Advances. NFC
may request each Liquidity Lender, on the Scheduled Liquidity Commitment
Termination Date with respect to such Liquidity Lender's Liquidity
Commitment, to make a Refunding Advance to NFC on the terms and subject
to the conditions of this Liquidity Agreement. Any such Commitment
Termination Date Liquidity Advance shall not exceed such Liquidity
Lender's Overall Percentage of the Aggregate Face Amount on the date of
such Commitment Termination Date Liquidity Advance and the aggregate
amount of any previously made Liquidity Advances of such Liquidity Lender
that are outstanding on such date shall be converted into, and for all
purposes of this Agreement shall be treated as, a Commitment Termination
Date Liquidity Advance.
SECTION 3.6.5. Nature of Funding Obligations. The obligations of
the Liquidity Lenders hereunder are several and not joint. All Liquidity
Advances (other than Swing Line Advances and Commitment Termination Date
Liquidity Advances) under this Liquidity Agreement shall be made by the
Liquidity Lenders simultaneously and proportionately to their respective
Percentages, it being understood that, subject to Section 3.2.3, no
Liquidity Lender shall be responsible for any failure by any other
Liquidity Lender to perform its obligation to make a Liquidity Advance
hereunder and that the Liquidity Commitment of any Liquidity Lender shall
not be increased or decreased as a result of the failure by any other
Liquidity Lender to perform its obligation to make a Liquidity Advance.
The failure of any Liquidity Lender to make available to the Liquidity
Agent its ratable share of any Borrowing shall not relieve any other
Liquidity Lender of its obligation hereunder to make available to the
Liquidity Agent such other Liquidity Lender's pro rata share of such
Borrowing on the date such funds are to be made available pursuant to the
terms of this Liquidity Agreement. Notwithstanding the foregoing, each
Liquidity Lender shall
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continue to be obligated to make Liquidity Advances upon a default by a
Liquidity Lender as required by Section 3.2.3.
SECTION 3.6.6. Failure to Fund by Lender. Unless the Liquidity
Agent shall have been notified by any Liquidity Lender prior to 1:00
p.m., New York City time, on the date of any Borrowing in respect of any
Liquidity Advances that such Liquidity Lender does not intend to make
available to the Liquidity Agent such Liquidity Lender's Liquidity
Advances on such date of Borrowing, the Liquidity Agent may assume that
such Liquidity Lender has made such amount available to the Liquidity
Agent on such date of Borrowing and the Liquidity Agent in its sole
discretion may, but shall not be obligated to, make available to NFC a
corresponding amount on such date of Borrowing. If such corresponding
amount is not in fact made available to the Liquidity Agent by such
Liquidity Lender on or prior to a date of Borrowing, such Liquidity
Lender agrees to pay to the Liquidity Agent forthwith on demand such
corresponding amount together with interest thereon, and NFC agrees to
repay to the Liquidity Agent forthwith on the Business Day immediately
following the date of demand therefor such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to NFC until the date such amount is paid or repaid to the
Liquidity Agent, at (a) in the case of such Liquidity Lender, the Federal
Funds Rate for the first Business Day and thereafter at the Base Rate,
and (b) in the case of NFC, the interest rate that would be applicable at
the time to a Borrowing of Base Rate Advances made on such date of
Borrowing. If such Liquidity Lender shall pay to the Liquidity Agent such
corresponding amount, such amount so paid shall constitute such Liquidity
Lender's Liquidity Advance, and if both such Liquidity Lender and NFC
shall have paid and repaid, respectively, such corresponding amount, the
Liquidity Agent shall promptly pay over to NFC such corresponding amount
in same day funds, but NFC shall remain obligated for all interest
thereon. To the extent any such amount due to the Liquidity Agent under
this Section 3.6.6 has not been paid in full, the Liquidity Agent may
make a demand on the Agent to pay such amount in accordance with Sections
2.01 and 5.02(b) of the Collateral Agreement.
SECTION 3.7. Disbursement of Funds. (a) Upon receipt of each
Borrowing Request for Refunding Advances or for Revolving Advances, the
Liquidity Agent shall give to each Liquidity Lender prompt notice thereof
and of such Liquidity Lender's share of the Borrowing requested thereby.
On or before 1:30 p.m., New York City time, on the proposed Borrowing
date, each Liquidity Lender shall deposit with the Liquidity Agent same
day funds in an amount equal to such Liquidity Lender's Percentage of the
requested Borrowing. Such deposit will be made to a segregated trust
account (Account No. 102478) established by the Liquidity Agent or such
other account which the Liquidity Agent shall
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specify from time to time by notice to the Liquidity Lenders. No
Liquidity Lender's obligation to make any Revolving Advances or Refunding
Advances, as the case may be, shall be diminished by any other Liquidity
Lender's failure to make any Revolving Advances or Refunding Advances, as
the case may be.
(b) Upon receipt of a Borrowing Request for a Swing Line
Advance, the Liquidity Agent shall give the Swing Line Lender prompt
notice thereof and of the amount of the Borrowing requested thereby. On
or before 1:30 p.m., New York City time, on the date of the proposed
Borrowing, the Swing Line Lender shall deposit with the Liquidity Agent
same day funds in an amount equal to the requested Borrowing. Such
deposit shall be made to an account which the Liquidity Agent shall
specify from time to time by notice to the Swing Line Lender.
(c) Unless the Liquidity Agent determines that any condition
specified in Section 6.2, in the case of Revolving Advances, or Section
6.3, in the case of Refunding Advances or Swing Line Advances, has not
been satisfied, the Liquidity Agent will remit the aggregate of the
amounts of (i) Refunding Advances or Swing Line Advances so made
available by the Liquidity Lenders (or, in the case of any Swing Line
Advance, the Swing Line Lender) to the Commercial Paper Account, (ii)
Commitment Termination Date Liquidity Advances so made available by the
Liquidity Lenders to the Termination Advance Account and (iii) Revolving
Advances so made available by the Liquidity Lenders to the Collateral
Account, in each case not later than 2:30 p.m., New York City time.
SECTION 3.8. Continuation and Conversion Elections. By delivering
a Continuation/Conversion Notice to the Liquidity Agent (which will give
prompt notice to the Liquidity Lenders) on or before 11:15 a.m., New York
City time, on a Business Day, NFC may from time to time irrevocably elect
that all or any portion in an aggregate minimum amount of $5,000,000 and
an integral multiple of $1,000,000 of any Liquidity Advances be
(a) in the case of Base Rate Advances, (i) on not less
than three nor more than five Business Days' prior notice,
converted into LIBOR Advances, or (ii) continued as Base Rate
Advances; or
(b) in the case of LIBOR Advances, (i) on prior notice
given not less than three nor more than five Business Days prior
to the end of the related Interest Period, continued as LIBOR
Advances or (ii) converted into Base Rate Advances.
In the absence of delivery of a Continuation/Conversion Notice at least
three Business Days prior to the last day of the related Interest Period,
in the case of any LIBOR Advance, such LIBOR
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Advance shall, on such last day, automatically convert to a Base Rate
Advance. In the absence of delivery of a Continuation/Conversion Notice
at least three Business Days prior to the last day of the related
Interest Period, in the case of any Base Rate Advance, such Base Rate
Advance shall automatically continue as a Base Rate Advance. No portion
of the principal amount of any Liquidity Advances Outstanding may be
continued as, or be converted into, LIBOR Advances when any Amortization
Event or Potential Amortization Event has occurred and is continuing.
SECTION 3.9. LIBOR Funding. (a) Bach Liquidity Lender may, if it
so elects, fulfill its obligation to make, continue or convert LIBOR
Advances hereunder by causing one of its foreign branches or Affiliates
(or an international banking facility created by such Liquidity Lender)
to make or maintain such LIBOR Advance; provided, however, that such
LIBOR Advance shall nonetheless be deemed to have been made and to be
held by such Liquidity Lender, and the obligation of NFC to repay such
LIBOR Advance shall nevertheless be to such Liquidity Lender for the
account of such foreign branch, Affiliate or international banking
facility.
(b) NFC shall not be permitted to request, and the Liquidity
Lenders shall not be required to maintain, any number of Interest Periods
with respect to LIBOR Advances in effect at any time hereunder in excess
of 20.
SECTION 3.10. Liquidity Advance Notes. Each Liquidity Lender's
Revolving Advances and Refunding Advances (including its Commitment
Termination Date Liquidity Advance and, in the case of the Swing Line
Lender, any Swing Line Advances) under its Liquidity Commitment shall be
evidenced by a Revolving Note and a Refunding Note, respectively, each
duly executed on behalf of NFC, and each payable to the order of such
Liquidity Lender in a maximum principal amount equal in each case to such
Liquidity Lender's original Liquidity Commitment. NFC hereby irrevocably
authorizes each Liquidity Lender to make (or cause to be made)
appropriate notations on the grid attached to such Liquidity Lender's
Liquidity Advance Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest Period
applicable to the Liquidity Advances evidenced thereby. Such notations
shall be conclusive and binding on NFC absent manifest error; provided,
however, that the failure of any Liquidity Lender to make any such
notation or any error in any such notation shall not limit or otherwise
affect any Obligations of NFC.
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ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments. NFC shall repay in full
the unpaid principal amount of each Liquidity Advance on the earlier to
occur of (i) the Scheduled Maturity Date and (ii) the date all
Obligations are declared or otherwise become due and payable under
Section 9.2. Prior thereto, NFC shall make repayments and prepayments in
accordance with this Section 4.1.
SECTION 4.1.1. Voluntary Prepayments. From time to time on any
Business Day, NFC may make a voluntary prepayment, in whole or in part,
of the outstanding principal amount of any Liquidity Advance; provided,
however, that
(a) NFC shall, in the case of the voluntary prepayment
of any LIBOR Advance, give the Liquidity Agent at least three but
no more than five Business Days' prior written notice of its
intent to prepay such LIBOR Advance and NFC shall specify in such
prior written notice the amount of such prepayment;
(b) all such voluntary prepayments which are partial
prepayments shall be in a minimum aggregate principal amount equal
to $1,000,000 and in an integral multiple of $100,000;
(c) all such voluntary prepayments shall be applied,
unless otherwise specified by NFC, to the payment of, first, pro
rata among Base Rate Advances and then, pro rata among LIBOR
Advances having the same Interest Period in the inverse order of
their maturities; and
(d) no such voluntary prepayment of any LIBOR Advance
may be made on any day other than the last day of the Interest
Period for such LIBOR Advance unless, as required by Section 5.4,
breakage fees are paid in connection with such prepayment.
SECTION 4.1.2. Mandatory Prepayments. (a) Concurrently with any
partial reduction or termination of the Aggregate Liquidity Commitment
pursuant to Section 3.3, all funds available on such day in the
Collateral Account for the payment of Liquidity Advances, as provided in
Section 2.01 or 5.02, as applicable, of the Collateral Agreement, shall
be applied to repay as much of the Liquidity Advances (and interest
accrued thereon) as shall be necessary so that the sum of the aggregate
principal amount of Liquidity Advances Outstanding (other than Commitment
Termination Date Liquidity Advances) plus the Aggregate Face Amount will
not exceed the Aggregate Liquidity Commitment plus the Fronting Letter of
Credit Amount after giving
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effect to such termination or reduction and, to the extent such funds are
not sufficient to pay such excess (and interest accrued thereon), all
funds subsequently deposited in the Collateral Account and allocated to
the payment of Liquidity Advances in accordance with the priorities set
forth in Section 2.01 or 5.02, as applicable, of the Collateral Agreement
shall be applied to pay such excess (and interest accrued thereon) until
so paid.
(b) If, on any Business Day, a Borrowing Base Deficiency
exists, all funds available for the payment of Commercial Paper Notes,
Liquidity Advances or Support Liquidity Disbursements on such day in the
Collateral Account, as provided in Section 2.01 or 5.02, as applicable,
of the Collateral Agreement, shall be (i) first, deposited in the
Commercial Paper Account for application to the payment of maturing
Commercial Paper Notes (and, in the case of deposits made pursuant to
Section 2.01 of the Collateral Agreement, unmatured Commercial Paper
Notes) and (ii) second, applied to repay Liquidity Advances and Support
Liquidity Disbursements (and interest accrued thereon) pro rata in
accordance with their outstanding principal amount, in each case, as
shall be necessary so that after giving effect to such application there
shall be no such Borrowing Base Deficiency and, to the extent such funds
or other amounts are not sufficient therefor, all funds subsequently
deposited in the Collateral Account and allocated to the payment of
Liquidity Advances and Support Liquidity Disbursements in accordance with
the priorities set forth in Section 2.01 or 5.02, as applicable, of the
Collateral Agreement shall be applied or set aside for the pro rata
application to Liquidity Advances Outstanding and Support Liquidity
Disbursements Outstanding until there shall be no such Borrowing Base
Deficiency.
(c) Each mandatory payment required by clause (a) (in the case
of a reduction or termination pursuant to Section 3.3) or clause (b)
above shall, for purposes of Section 9.1.1 and all other provisions of
this Liquidity Agreement, be due and payable in full on the Business Day
on which such reduction or termination or such Borrowing Bane Deficiency
exists, whether or not sufficient funds are then available to make such
payment.
SECTION 4.2. Interest Provisions. Interest on the principal amount
of Liquidity Advances Outstanding shall accrue and be payable in
accordance with this Section 4.2.
SECTION 4.2.1. Rates. (a) Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, NFC may elect that
Liquidity Advances comprising a Borrowing accrue interest at a rate per
annum:
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(i) on that portion maintained from time to time as a
Base Rate Advance, equal to the Base Rate from time to time in
effect; or
(ii) on that portion maintained as a LIBOR Advance,
during each Interest Period applicable thereto, equal to the sum
of the LIBOR for such Interest Period plus a margin of 0.75% per
annum.
(b) If any Liquidity Lender shall determine in good faith that
reserves under Regulation D of the Board of Governors of the Federal
Reserve System ("Regulation D") are required to be maintained by it in
respect of, or that a portion of its costs of maintaining reserves under
Regulation D is properly attributable to, one or more of its LIBOR
Advances, NFC shall pay to such Liquidity Lender additional interest on
the unpaid principal amount of each such LIBOR Advance from the date such
reserves were required to be maintained until such principal amount is
paid in full or converted into a Base Rate Advance, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i)
LIBOR for the Interest Period for such LIBOR Advance from (ii) the rate
obtained by dividing such LIBOR by an amount equal to one minus the LIBOR
Reserve Percentage (expressed as a decimal) of such Liquidity Lender for
such LIBOR Interest Period. Any Liquidity Lender claiming any additional
interest payable pursuant to this clause (b) shall provide a written
certificate to the Liquidity Agent, NFC and the Rating Agencies setting
forth the amount of such additional interest and reasonable detail as to
the calculation thereof. NFC shall pay such Liquidity Lender the amount
shown as due on any such certificate within 30 days following the date on
which such certificate was delivered to NFC.
SECTION 4.2.2. Post Default Rates. Without giving effect to
Section 5.10 hereof, after the date on which any amount of any Liquidity
Advance is due and payable (whether on the last day of an Interest
Period, on the Scheduled Maturity Date, when a mandatory prepayment
initially becomes due or upon acceleration or otherwise), or after any
other monetary Obligation of NFC shall have become due and payable, NFC
shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on the principal amount of Liquidity Advances
then outstanding (whether or not the same shall then be due and payable)
and each other monetary Obligation hereunder (but only if the same shall
then be due and payable in accordance with the terms of this Liquidity
Agreement) at a rate per annum equal to a margin of 1%t per annum plus
(i) in the case of any Liquidity Advances then outstanding and in respect
of which Interest Periods remain in effect, the respective interest rates
then applicable to such Liquidity Advances, and (ii) in all other
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cases, a rate per annum equal to the rate per annum that would then be in
effect with respect to a Ease Rate Advance.
SECTION 4.3. Payments of Interest. Accrued interest in respect of
each Liquidity Advance shall be payable in arrears (whether by
acceleration, demand or otherwise) on each payment date set forth below:
(a) with respect to any Base Rate Advance, on the third
Business Day following the end of each calendar quarter, beginning
with the first such date to occur after such Base Rate Advance is
made;
(b) with respect to any LIBOR Advance, on the last day
of each applicable Interest Period (and, if such Interest Period
shall exceed three months, on the three-month anniversary of the
commencement of such Interest Period);
(c) in the case of any payment or prepayment, in whole
or in part, of principal outstanding on any Liquidity Advance, on
the amount and on the date of such payment or prepayment;
(d) with respect to any Base Rate Advance converted into
a LIBOR Advance on a day when interest would not otherwise have
been payable pursuant to clause (a), on the date of such
conversion; and
(e) on that portion of any Liquidity Advance which is
accelerated pursuant to Section 9.2, immediately upon such
acceleration.
Interest accrued on Liquidity Advances or other monetary Obligations
arising under this Liquidity Agreement or any other Related Document
after the date such amount is due and payable shall be payable upon
demand.
SECTION 4.4. Computation Basis. Interest accruing based on the
Base Rate shall be computed on the basis of the actual number of days
elapsed and a 365 (or, if applicable, 366) day year. Interest accruing
based on LIBOR shall be computed on the basis of the actual number of
days elapsed and a 360 day year.
SECTION 4.5. Fees. (a) Commitment Fee. NFC agrees to pay to the
Liquidity Agent for the account of each Liquidity Lender an ongoing
commitment fee (the "Commitment Fee") equal to 0.225% per annum of the
average daily unused portion of each such Liquidity Lender's Liquidity
Commitment, such fee to accrue from the Closing Date until the Liquidity
Commitment Termination Date. The Commitment Fee shall be computed based
on the actual number of days elapsed and a year of 365 days. The
Commitment Fee shall
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be payable in arrears on the last Business Day of each calendar quarter
occurring after the Closing Date and on the Liquidity Commitment
Termination Date.
(b) Upfront Fee. NFC agrees to pay to the Liquidity Agent for
the account of each Liquidity Lender, as applicable, an upfront fee (the
"Upfront Fee") equal to (i) 0.075% of the initial Liquidity Commitment of
such Liquidity Lender if such initial Liquidity Commitment is equal to or
greater than $75,000,000, (ii) 0.05% of the initial Liquidity Commitment
of such Liquidity Lender if such initial Liquidity Commitment is equal to
or greater than $50,000,000 and less than $75,000,000 and (iii) 0.03% of
the initial Liquidity Commitment of such Liquidity Lender if such initial
Liquidity Commitment is equal to or greater than $25,000,000 and less
than $50,000,000, which shall be payable immediately upon the Closing
Date. In the event that (i) a Liquidity Lender's short-term credit rating
is reduced to below A-1 by S&P or below P-1 by Xxxxx'x prior to its
Liquidity Commitment Termination Date, and (ii) NFC elects to replace
such Liquidity Lender pursuant to the xxxxx of this Agreement, then such
Liquidity Lender shall reimburse NFC for an amount equal to the unearned
portion of the Upfront Fee (based on the remaining period from the date
of such replacement to such Liquidity Lender's Scheduled Commitment
Termination Date).
ARTICLE V
CERTAIN LIBOR AND OTHER PROVISIONS
SECTION 5.1. LIBOR Lending Unlawful. If any Liquidity Lender shall
reasonably determine (which determination shall, upon notice thereof to
NFC and the other Liquidity Lenders, be conclusive and binding on NFC)
that the introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for such Liquidity
Lender to make, continue or maintain any Liquidity Advance as, or to
convert any Liquidity Advance into, a LIBOR Advance, the obligation of
such Liquidity Lender to make, continue or maintain or convert any such
Liquidity Advance as a LIBOR Advance shall, upon such determination,
forthwith be suspended until such Liquidity Lender shall notify the
Liquidity Agent and NFC that the circumstances causing such suspension no
longer exist, and NFC shall immediately convert (in the manner provided
for in Section 3.8) all LIBOR Advances of such Liquidity Lender into Base
Rate Advances at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If the Liquidity Agent shall
have reasonably determined that
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(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to all Reference
Lenders in the relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBOR
Advances; or
(c) the Majority Banks have notified the Liquidity Agent
that, with respect to any interest rate otherwise applicable
hereunder to any LIBOR Advances the Interest Period for which has
not then commenced, such interest rate will not adequately reflect
the cost to such Majority Banks of making, funding or maintaining
their respective LIBOR Advances for such Interest Period.
then, upon notice from the Liquidity Agent to NFC and the Liquidity
Lenders, the obligations of all Liquidity Lenders under Section 3.6 and
Section 3.8 to make or continue any Liquidity Advance as, or to convert
any Liquidity Advances into, LIBOR Advances shall forthwith be suspended
until the Liquidity Agent shall notify NFC and the Liquidity Lenders that
the circumstances causing such suspension no longer exist.
SECTION 5.3 . Increased Costs. etc. NFC agrees to reimburse each
Liquidity Lender if any change in, or the introduction, adoption,
interpretation or reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other Governmental
Authority of competent jurisdiction increases or would increase the cost
to such Liquidity Lender of, or reduces or would reduce the amount of any
sum receivable by such Liquidity Lender in respect of, making, continuing
or maintaining (or its obligation to make, continue or maintain) any
Liquidity Advance as, or of converting (or of its obligation to convert)
any Liquidity Advance into, a LIBOR Advance and such amount is not
otherwise recoverable by such Liquidity Lender under Section 4.2.1.(b)
hereof. Such Liquidity Lender shall promptly notify the Liquidity Agent,
NFC and the Rating Agencies in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor
and the additional amount required fully to compensate such Liquidity
Lender for such increased costs or reduced amount. Such additional
amounts shall be payable by NFC directly to such Liquidity Lender within
five days of its receipt of such notice and such notice shall, in the
absence of demonstrable error, be conclusive and binding on NFC.
SECTION 5.4. Funding Losses. In the event any Liquidity Lender
shall incur any loss or expense (including any loss or
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expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Liquidity Lender to make, continue or
maintain any portion of the principal amount of any Liquidity Advance as,
or to convert any portion of the principal amount of any Liquidity
Advance into, a LIBOR Advance) as a result of
(a) any conversion or repayment or prepayment (for any
reason, including, without limitation, as a result of the
acceleration of the maturity of a LIBOR Advance or the assignment
of a LIBOR Advance pursuant to Section 5.9 hereof) of the
principal amount of any LIBOR Advance on a date other than the
scheduled last day of the Interest Period applicable thereto;
(b) any Liquidity Advance not being made as a LIBOR
Advance in accordance with the Borrowing Request therefor; or
(c) any Liquidity Advance not being continued as, or
converted into, a LIBOR Advance in accordance with the
Continuation/Conversion Notice therefor,
then, after notice by such Liquidity Lender of such loss or expense to
NFC (with a copy to the Liquidity Agent and the Rating Agencies), NFC
shall, within five Business Days of its receipt thereof, pay directly to
such Liquidity Lender such amount as will (in the reasonable
determination of such Liquidity Lender) reimburse such Liquidity Lender
for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of demonstrable
error, be conclusive and binding on NFC.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, interpretation or reinterpretation or phase-in
of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank,
regulator or other Governmental Authority of competent jurisdiction
affects or would affect the amount of capital required or reasonably
expected to be maintained by any Liquidity Lender or any Person directly
or indirectly controlling such Liquidity Lender, and such Liquidity
Lender reasonably determines (in its sole and absolute discretion) that
the rate of return on its or such controlling Person's capital as a
consequence of its Liquidity Commitment or the Liquidity Advances made by
such Liquidity Lender is reduced to a level below that which such
Liquidity Lender or such controlling Person would have achieved but for
the occurrence of any such circumstance, then, in any such case after
notice from time to time by such Liquidity Lender to NFC and the Rating
Agencies, NFC shall pay within five Business Days of demand
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directly to such Liquidity Lender or to such controlling Person
additional amounts sufficient to compensate such Liquidity Lender or such
controlling Person for such reduction in rate of return. A statement of
such Liquidity Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail), shall, in the
absence of demonstrable error, be conclusive and binding on NFC. In
determining such amount, such Liquidity Lender may use any method of
averaging and attribution that it (in its reasonable discretion) shall
deem applicable.
SECTION 5.6. Taxes. All payments by NFC of principal of, and
interest on, the Liquidity Advances and all other amounts payable
hereunder shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise and
other taxes imposed on or measured by any Liquidity Lender's net income
by the United States of America or any jurisdiction under the laws of
which such Liquidity Lender is organized or maintains an office (such
non-excluded items being called "Taxes"). In the event that any
withholding or deduction from any payment to be made by NFC hereunder is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then NFC will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Liquidity Agent an official
receipt or other documentation satisfactory to the Liquidity Agent
evidencing such payment to such authority; and
(c) pay to the Liquidity Agent for the account of the
Liquidity Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each
Liquidity Lender will equal the full amount such Liquidity Lender
would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Liquidity Agent
or any Liquidity Lender with respect to any payment received by the
Liquidity Agent or such Liquidity Lender hereunder, the Liquidity Agent
or such Liquidity Lender may pay such Taxes and NFC will promptly pay
such additional amounts (including any penalties, interest or expenses)
as is necessary in order that the net amount received by such person
after the payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such person would have received had not
such Taxes been asserted.
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If NFC fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Liquidity Agent, for the account of
the respective Liquidity Lenders, the required receipts or other required
documentary evidence, NFC shall indemnify the Liquidity Lenders and the
Liquidity Agent for any incremental Taxes, interest or penalties that may
become payable by any Liquidity Lender or the Liquidity Agent as a result
of any such failure. For purposes of this Section 5.6, a distribution
hereunder by the Liquidity Agent or any Liquidity Lender to or for the
account of any Liquidity Lender shall be deemed a payment by NFC.
Each Liquidity Lender that is organized under the laws of a
jurisdiction other than the United States shall, prior to the initial due
date of any payments hereunder and (to the extent permissible under then
current law) on or about the first scheduled payment date in each
calendar year thereafter, execute and deliver to NFC and the Liquidity
Agent, one or more (as NFC or the Liquidity Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001 or such
other forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which
a payment to such Liquidity Lender is exempt from withholding or
deduction of Taxes. NFC shall not, however, be required to pay any
increased amount under this Section 5.6 to any Liquidity Lender that is
organized under the laws of a jurisdiction other than the United States
if such Liquidity Lender fails to comply with the requirements set forth
in this paragraph.
SECTION 5.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by NFC pursuant to this Liquidity
Agreement, the Liquidity Advance Notes and any other Liquidity Document
shall be made by NFC to the Liquidity Agent for the pro rata account, on
the basis of Liquidity Advances Outstanding, or if no Liquidity Advances
are outstanding, on the basis of Liquidity Commitments, of the Liquidity
Lenders entitled to receive such payment. All such payments required to
be made to the Liquidity Agent by NFC shall be made, without setoff,
deduction or counterclaim on the date due, in same day or immediately
available funds, to the account established pursuant to Section 3.7(a) or
such other account as the Liquidity Agent shall specify from time to time
by notice to NFC. The Liquidity Agent shall promptly upon receipt thereof
remit in same day funds to each Liquidity Lender its share, if any, of
such funds received by the Liquidity Agent for the account of such
Liquidity Lender. Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as
otherwise required by the second proviso of the definition of the term
"Interest Period" with respect to LIBOR Advances) be made on the next
succeeding Business Day and such extension of
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time shall be included in computing interest in connection with such
payment.
SECTION 5.8. Sharing of Payments. If any Liquidity Lender shall
obtain any payment or other recovery (whether voluntary or involuntary)
on account of any Liquidity Advance (other than pursuant to the terms of
Sections 5.3, 5.4, 5.5 and 5.6) in excess of its pro rata share of
payments, on the basis of Liquidity Advances Outstanding, or if no
Liquidity Advances are outstanding, on the basis of Liquidity
Commitments, then or therewith obtained by all Liquidity Lenders, such
Liquidity Lender shall purchase from the other Liquidity Lenders such
participation in Liquidity Advances made by them as shall be necessary to
cause such purchasing Liquidity Lender to share the excess payment or
other recovery with each of them on a Pro rata basis, computed on the
basis of each Liquidity Lender's Liquidity Advances Outstanding or
Liquidity Commitment, as the case may be, on the date of such
computation; Provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing
Liquidity Lender, the purchase shall be rescinded and each Liquidity
Lender which has sold a participation to the purchasing Liquidity Lender
shall repay to the purchasing Liquidity Lender the purchase price to the
ratable extent of such recovery together with an amount equal to such
selling Liquidity Lender's ratable share (according to the proportion of
(a) the amount of such selling Liquidity Lenders
required repayment to the purchasing Liquidity Lender
to
(b) the total amount so recovered from the purchasing
Liquidity Lender)
of any interest or other amount paid or payable by the purchasing
Liquidity Lender in respect of the total amount so recovered. NFC agrees
that any Liquidity Lender so purchasing a participation from another
Liquidity Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Liquidity Lender were the direct
creditor of NFC in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Liquidity
Lender receives a secured claim to which this Section applies, such
Liquidity Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of
the Liquidity Lenders entitled under this Section to share in the
benefits of any recovery on such secured claim.
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SECTION 5.9. Replacement of Liquidity Lenders. (a) If at any time the
credit rating assigned to the short-term obligations of any Liquidity Lender (an
"Affected Liquidity Lender") is withdrawn or downgraded below the rating then
assigned by S&P or Xxxxx'x, respectively, to the Commercial Paper Notes, NFC
may, upon five Business Days' prior written notice given to the Liquidity Agent
and such Affected Liquidity Lender, replace such Affected Liquidity Lender with
an Eligible Liquidity Lender or a Liquidity Lender already party to this
Liquidity Agreement and such replacement shall be made in accordance with clause
(a) of Section 11.11.1 and the proviso of clause (b) of this Section 5.9;
provided, however, that no such replacement pursuant to this clause (a) shall be
effective unless S&P and Xxxxx'x shall have confirmed in writing to NFC and the
Liquidity Agent that such replacement (i) would not result in a withdrawal or
reduction of the rating by S&P or Xxxxx'x of the Commercial Paper Notes below
the rating then assigned by such Rating Agency to the Commercial Paper Notes or
(ii) if the Commercial Paper Notes are then rated less than A-1 by S&P or P-1 by
Xxxxx'x, would result in an upgrade of the rating by S&P or Xxxxx'x of the
Commercial Paper Notes over the rating then assigned by such Rating Agency to
the Commercial Paper Notes.
(b) In the event that (i) any Liquidity Lender shall have notified the
Liquidity Agent or NFC (and shall not have retracted such notification) that its
compliance with any of its obligations hereunder would be unlawful, (ii) any
Liquidity Lender fails to extend its Liquidity Commitment upon request, (iii)
NFC is required pursuant to Section 4.2.1(b) or Sections 5.3 through 5.6 to make
any payment to or on behalf of any Liquidity Lender (or would be so required on
or prior to the next following date on which a payment hereunder (other than
pursuant to Section 5.6) is required to be made to or for any such Liquidity
Lender) or (iv) any Liquidity Lender shall have failed to fund any Liquidity
Advance when required hereunder, then NFC shall have the right, at its own
expense, upon notice to such Liquidity Lender and the Liquidity Agent, to
require such Liquidity Lender, and such Liquidity Lender hereby agrees, to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 11.11) all the interests, rights and
obligations of such Liquidity Lender to an Eligible Liquidity Lender provided by
NFC; provided, however, that (w) no such assignment shall conflict with any law,
rule, regulation or order of any Governmental Authority, (x) such assignment
shall be without recourse, representation and warranty and shall be on terms and
conditions reasonably satisfactory to such replaced Liquidity Lender and such
replacement Eligible Liquidity Lender, (y) the purchase price paid by such
replacement Eligible Liquidity Lender shall be in an amount equal to the
aggregate amount of all Liquidity Advances owed to such replaced Liquidity
Lender, and (z) NFC or such Eligible Liquidity Lender,
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as the case may be, shall pay to such replaced Liquidity Lender in same day
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Liquidity Advances made by such replaced Liquidity
Lender hereunder and all other amounts accrued for such replaced Liquidity
Lender's account or owed to it hereunder, including those amounts owed pursuant
to Section 4.2.l(b) and Sections 5.3 through 5.6.
SECTION 5.10. Order and Priority. Notwithstanding any other provision of
this Liquidity Agreement (other than Section 4.2.2.), the Liquidity Agent and
the Liquidity Lenders agree that the Obligations of NFC to the Liquidity Agent
and the Liquidity Lenders hereunder shall be payable in the order and priority
net forth in Section 2.01 and 5.02(b), as applicable, of the Collateral
Agreement. The Liquidity Agent and the Liquidity Lenders agree that, during any
period prior to the 18 month anniversary of the Amortization Commencement Date
that Commercial Paper Notes shall be outstanding (any such period being a
"Specified Period"), the Obligations shall be due and payable only to the extent
that NFC's assets and the Fronting Letter of Credit Amount are sufficient to pay
the same. If, during any Specified Period, the Liquidity Lenders shall exercise
their rights, pursuant to Section 9.2(ii), to accelerate the Obligations, such
acceleration shall have the limited effect of (i) causing the interest rates
contemplated in Section 4.2.2 to become effective with respect to the
outstanding Obligations and (ii) allowing the Liquidity Lenders, in any
determination of the Liquidity Lenders' allocative share of any disbursement to
be made to Secured Parties under the Collateral Agreement or otherwise among
creditors of NFC, to treat all of the Obligations as then being due and payable.
No claims of the Liquidity Lenders arising under or in connection with this
Liquidity Agreement are intended to be impaired or waived by this Section 5.10.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1 Conditions to Effectiveness. This Liquidity Agreement shall
become effective on the date (the "Closing Date") when all of the conditions set
forth in Section 6.1 have been satisfied (and each Liquidity Lender's signature
hereto evidences that such conditions have been satisfied with respect to such
Liquidity Lender).
SECTION 6.1.1 Organic Documents, Resolutions. The Liquidity Agent shall
have received: (1) a copy of NFC's certificate of incorporation, including all
amendments thereto, certified as a recent date by the Secretary of State of the
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State of Delaware, and a certified copy of all other Organic Documents of NFC,
and such certificate, articles or Organic Documents shall be in form and
substance satisfactory to the Liquidity Agent and its counsel, and a certificate
as to the good standing of NFC as of a recent date, from such Secretary of
State; (ii) a certificate of the Secretary or Assistant Secretary of NFC dated
the Closing Date and certifying (A) that attached thereto is a true and complete
copy of the Bylaws of NFC as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions in form and
substance satisfactory to the Liquidity Agent and its counsel and duly adopted
by the Board of Directors of NFC authorizing the execution, delivery and
performance of this Liquidity Agreement and each of the other Related Documents
to which NFC is a party and the transactions contemplated hereby and thereby,
and that such resolutions have not been modified, rescinded or amended and are
in full force and effect, (C) that the certificate of incorporation of NFC has
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above and (D) as
to the incumbency and specimen signature of each officer executing this
Liquidity Agreement and each of the other Related Documents to which NFC is a
party or any other document delivered in connection herewith or therewith on
behalf of NFC; (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other documents as the
Liquidity Agent may reasonably request.
SECTION 6.1.2. Liquidity Agreement. The Liquidity Agent shall have received
executed counterparts of this Liquidity Agreement, duly executed by NFC, the
Liquidity Agent, and each Liquidity Lender.
SECTION 6.1.3. Liquidity Advance Notes. The Liquidity Agent shall have
received, for the account of each Liquidity Lender, such Liquidity Lender's
Liquidity Advance Notes duly executed and delivered by NFC.
SECTION 6.1.4. Master Collateral Agency Agreement; Collateral Sharing
Agreement and Collateral Agreement. (a) The Liquidity Agent shall have received
executed counterparts of the Collateral Agreement, dated as of the Closing Date,
duly executed by NFC, the Agent, the Liquidity Agent, the Depositary, the
Placement Agent, the Dealer, the A Support Credit Enhancer and the B Support
Credit Enhancers.
(b) The Liquidity Agent shall have received executed counterparts of the
Collateral Sharing Agreement, dated as of the
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Closing Date, duly executed by the Agent and the B Support Credit Enhancers.
(c) The Liquidity Agent shall have received executed counterparts of the
Master Collateral Agency Agreement, dated as of the Closing Date, duly executed
by NFC, National, the Agent and the Master Collateral Agent, in the form of
Exhibit D to the Loan Agreement, designating NFC as a "Financing Source" and the
Agent as a "Beneficiary thereunder with respect to Vehicles financed with the
proceeds of Loans pursuant to the Loan Agreement and the Supplement thereto,
dated as of the Closing Date, duly executed by NFC, National, the Master
Collateral Agent and the B Support Credit Enhancers designating the B Support
Credit Enhancers as a "Beneficiary" of NFC.
SECTION 6.1.5. Loan Agreement. The Liquidity Agent shall have received
executed counterparts of the Loan Agreement, dated as of the Closing Date, duly
executed by NFC and National, and copies of all documents and opinions required
to be delivered to NFC thereunder, and all conditions to the effectiveness
thereof set forth therein shall have been satisfied in all respects.
SECTION 6.1.6. Letter of Credit Agreements. The Liquidity Agent shall have
received executed counterparts of (i) the A Letter of Credit Issuance Agreement,
dated as of the Closing Date, duly executed by NFC, National and the A Credit
Enhancer, (ii) the A Support Letter of Credit Agreement dated as of the A
Closing Date, duly executed by the A Credit Enhancer Support Credit Enhancer,
(iii) the A Support Reimbursement Agreement, dated as of the Closing Date, duly
executed by NFC, National and the A Support Credit Enhancer, (iv) the B Letter
of Credit Reimbursement Agreement, dated as of the Closing Date, duly executed
by NFC, National and the B Credit Enhancer and (v) the B Support Letter of
Credit Reimbursement Agreement, dated as of the Closing Date, duly executed by
NFC, National and the B Support Credit Enhancers, and, in each case, all
conditions to the effectiveness thereof set forth therein shall have been
satisfied in all respects. The A Letter of Credit in an amount equal to
$85,000,000 shall have been delivered to the Agent and shall be in full force
and effect, and the A Credit Enhancer shall not have a short-term rating lower
than A-1 from S&P and P-1 from Xxxxx'x. The B Letter of Credit in an amount
equal to $60,000,000 shall have been delivered to the Agent and shall be in full
force and effect, and the B Credit Enhancer shall not have a short-term rating
lower than A-1 from S&P and P-1 from Xxxxx'x.
SECTION 6.1.7. Depositary Agreement. The Liquidity Agent shall have
received executed counterparts of the Depositary Agreement, dated as of the
Closing Date, duly executed by NFC and the Depositary, and all of the conditions
to the effectiveness
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thereof set forth therein shall have been satisfied in all respects.
SECTION 6.1.8. Dealer Agreement; Placement Agency Agreement. The Liquidity
Agent shall have received executed counterparts of the Dealer Agreement, dated
as of the Closing Date, duly executed by NFC and each Dealer, and all of the
conditions to the effectiveness thereof set forth therein shall have been
satisfied in all respects. The Liquidity Agent shall have received executed
counterparts of the Placement Agency Agreement, dated as of the Closing Date,
duly executed by NFC and each Placement Agent, and all of the conditions to the
effectiveness thereof set forth therein shall have been satisfied in all
respects.
SECTION 6.1.9. Closing Date Certificate. The Liquidity Agent shall have
received a Closing Date Certificate, dated the Closing Date, duly executed and
delivered by an Authorized Officer of NFC, in which NFC shall have represented
and warranted that the representations and warranties of NFC in the Related
Documents are true and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materiality limitation in
their terms) as of the Closing Date and that no Amortization Event, Limited
Amortization Event, Loan Event of Default or, to the best of such Authorized
Officer's knowledge, Potential Amortization Event or Potential Loan Event of
Default has occurred and is continuing, and, at the time such certificate is
delivered, the Liquidity Agent shall be satisfied that such statements are in
fact true and correct (in all material respects to the extent that any such
statements do not incorporate a materiality limitation in their terms).
SECTION 6.1.10. Accounts. The Commercial Paper Account, the Master
Collateral Account, the Termination Advance Account, the Cash Reserve Account
and the Collateral Account shall have been established and shall be in full
force and effect.
SECTION 6.1.11. Rating Letters. The Liquidity Agent shall have received as
of the Closing Date a confirmation letter from each of S&P and Xxxxx'x to the
effect that the Commercial Paper Notes shall have been given a rating of at
least A-1 by S&P and P-1 by Xxxxx'x, which ratings shall be in full force and
effect.
SECTION 6.1.12. Vehicles; Repurchase Programs. etc. National shall have
good and marketable title to each Vehicle purchased or financed by it with the
proceeds of the Loans, free and clear of all Liens and encumbrances, other than
any Permitted Liens. Each Repurchase Program shall be in full force and effect,
and shall be enforceable against the related Manufacturer.
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SECTION 6.1.13. Assignments. (a) National shall have granted to the Master
Collateral Agent, for the benefit of NFC and the Agent on behalf of the Secured
Parties, a first priority security interest in all Vehicles now or hereafter
purchased by National with the proceeds of Loans.
(b) NFC shall have granted to the Agent a first priority security
interest in its right, title and interest in and to the Assigned Collateral.
(c) The Liquidity Agent shall have received executed counterparts of
the Assignment Agreements related to the assignment of rights under each
Repurchase Program, dated as of the Closing Date, duly executed by NFC,
National, the Master Collateral Agent and each Eligible Manufacturer.
SECTION 6.1.14. Board of Directors. The Liquidity Agent shall consent to
the composition of NFC's Board of Directors (including the independent
directors), which consent shall not be unreasonably withheld.
SECTION 6.1.15. Solvency Certificate. The Liquidity Agent shall have
received a certificate, dated the Closing Date, and duly executed by a Financial
Officer of NFC, in scope and substance satisfactory to the Liquidity Agent, to
the effect that NFC will be solvent after giving effect to the transactions
contemplated by this Liquidity Agreement, each of the other Related Documents
and the issuance and sale of the Commercial Paper Notes.
SECTION 6.1.16. Closing Fees and Expenses. The Liquidity Agent shall have
received for its own account and for the account of the Liquidity Lenders any
fees and expenses due and payable pursuant to Sections 4.5 and 11.3 and any fees
and expenses due and payable pursuant to any fee letters or commitment letters
entered into with any Liquidity Lender and/or the Liquidity Agent.
SECTION 6.1.17. Certified Copy of Repurchase Program. The Liquidity Agent
shall have received from NFC a copy of the materials delivered to NFC by
National pursuant to Section ll.l(p) of the Loan Agreement.
SECTION 6.1.18. Opinions. The Liquidity Agent shall have received opinions
of counsel, addressed to the Liquidity Agent and the Liquidity Lenders hereto,
reasonably satisfactory in form and substance to the Liquidity Agent and the
Liquidity Lenders.
SECTION 6.1.19. Notation of Liens. The Liquidity Agent shall have received
evidence (which, in the case of the filing of financing statements on form
UCC-1, may be telephonic
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confirmation of such filing) that all filings (including filings of financing
statements on form UCC-1) and recordings have been accomplished as may be
required by law to establish, perfect, protect and preserve the rights, titles,
interests, remedies, powers, privileges, licenses and security interest of (a)
the Master Collateral Agent in the Loan Collateral and (b) the Agent in the
Assigned Collateral for the benefit of the Secured Parties.
SECTION 6.1.20. Offering Materials. Each offering circular, offering
memorandum (including, without limitation, the Offering Memorandum) or
information circular to be used by NFC, the Placement Agents or the Dealers in
connection with the offer or sale of Commercial Paper Notes, insofar as it
describes or refers to the Liquidity Agent or any Liquidity Lender, shall be
reasonably satisfactory to the Liquidity Agent or such Liquidity Lender,
respectively.
SECTION 6.1.21. Savory Legal Form. This Liquidity Agreement, each of the
other Related Documents and all other documents executed or submitted pursuant
hereto or thereto by or on behalf of NFC shall be satisfactory in form and
substance to the Liquidity Agent and its counsel; and the Liquidity Agent and
its counsel shall have received all information, approvals, opinions, documents
or instruments as the Liquidity Agent or its counsel may have reasonably
requested not later than 3 Business Days prior to the Closing Date.
SECTION 6.1.22. Credit Rating of Initial Liquidity Lenders. As of the
Closing Date, each initial Liquidity Lender shall have a credit rating assigned
to its short-term obligations of at least A-1 by S&P and P-1 by Xxxxx'x.
SECTION 6.1.23. Vehicle Title Nominee Agreement; GM Guaranty. The Liquidity
Agent shall have received an executed copy of the Vehicle Title Nominee
Agreement substantially in the form of Exhibit F to the Loan Agreement. The
Liquidity Agent shall have received an executed copy of the GM Guaranty
substantially in the form of Exhibit G to the Loan Agreement.
SECTION 6.1.24. Assignment of GMAC Lien: Filing of UCC Termination
Statements. The Liquidity Agent shall have received: (a) an executed copy of an
assignment agreement, pursuant to which GMAC has assigned its Lien with respect
to the Initial Vehicles to the Master Collateral Agent; and (b) evidence (which
may be telephonic) of the filing of proper financing statements (form UCC-3)
necessary to release all security interests and other rights of GMAC in the
Initial Vehicles previously granted by Old National to GMAC.
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SECTION 6.2. Conditions to the Making of Each Revolving Advance. The
obligation of any Liquidity Lender to make any Revolving Advance (including any
continuation or conversion thereof pursuant to Section 3.8 except as otherwise
specified below) hereunder is subject to the satisfaction of the following
conditions:
SECTION 6.2.1. Representations and Warranties. On the date of the making of
such Revolving Advance (other than any continuation or conversion thereof
pursuant to Section 3.8) and after giving effect thereto, the representations
and warranties of NFC set forth in Article VII hereof, or in any other Related
Document to which NFC in a party, shall be true and correct (in all material
respects to the extent any such representations and warranties do not
incorporate a materiality limitation in their terms) with the same effect as if
then made (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct (in all material
respects to the extent any such representations and warranties do not
incorporate a materiality limitation in their terms) as of such earlier date).
SECTION 6.2.2. No Amortization Event; Loan Event of Default. (a) On the
date of the making of such Revolving Advance, continuation or conversion, and
after giving effect thereto, no Amortization Event or Loan Event of Default
shall have occurred and be continuing.
(b) On the date of the making of such Revolving Advance (other than any
continuation or conversion thereof pursuant to Section 3.8), and after giving
effect thereto, no Potential Amortization Event or Potential Loan Event of
Default shall have occurred and be continuing.
SECTION 6.2.3. No Borrowing Base Deficiency. A Borrowing Base Deficiency
shall not exist after giving effect to the application of funds in accordance
with Section 5.2 of the Collateral Agreement and the making of such Revolving
Advance, continuation or conversion would not result in a Borrowing Base
Deficiency.
SECTION 6.2.4. Availability. (a) The amount available to be drawn under the
Fronting Letters of Credit or on deposit in the Cash Collateral Accounts shall
not have been reduced to zero.
(b) The aggregate amount of all Borrowings of Liquidity Advances requested
by NFC to be made on such day shall not exceed the lesser of (i) the Aggregate
Liquidity Commitment minus Outstanding Liquidity Advances (other than Commitment
Termination Date Liquidity Advances) net of any amounts on deposit on such day
in the Collateral Account set aside for the repayment of the
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principal of, or interest on, Liquidity Advances, and (ii) the Borrowing Base
(after giving effect to the use of the proceeds of such Liquidity Advances)
minus the sum of (A) the aggregate Support Liquidity Disbursements Outstanding
plus (B) the Aggregate Outstanding CP plus (c) the Outstanding Liquidity
Advances net of any amounts on deposit on such day in the Collateral Account set
aside for the repayment of the principal of, or interest on, Liquidity Advances
or Support Liquidity Disbursements.
SECTION 6.2.5. Attachments. Anything herein to the contrary
notwithstanding, NFC shall not request (and the Agent on its behalf shall not be
permitted to request) Revolving Advances after NFC has received notice that any
of the Accounts, the Master Collateral Account, the Commercial Paper Account or
the Cash Collateral Accounts or any funds on deposit in, or otherwise to the
credit of any thereof aggregating $100,000 or more are or have become subject to
any stay, writ, judgment, warrant of attachment, execution or similar process;
provided, however, that if any such stay, writ, judgment, warrant of attachment,
execution or similar process is removed or dismissed, NFC may recommence the
requesting of Revolving Advances.
SECTION 6.2.6. Receipt of Monthly Report. The Liquidity Agent shall have
received, on or prior to the twentieth day of each month (or if not a Business
Day, on the next succeeding Business Day), a Monthly Report relating to the
Assigned Collateral as of the last Business Day of the immediately preceding
month occurring on or immediately preceding such date.
SECTION 6.2.7. Borrowing Request. The Liquidity Agent shall have received a
Borrowing Request for such Borrowing.
SECTION 6.2.8. Borrowing Base Certificate. The Liquidity Agent shall have
received an Officer's Certificate, dated the date of the making of such
Revolving Advance, duly executed and delivered by an Authorized Officer of NFC,
certifying the amount of the Borrowing Base as of the close of business on the
day immediately preceding such date.
SECTION 6.3. Conditions Precedent to the Making of Each Refunding Advance.
The obligation of any Liquidity Lender to make any Refunding Advance (including
any Commitment Termination Date Liquidity Advance) and of the Swing Line Lender
to make any Swing Line Advance shall be subject to the satisfaction of the
following conditions at the time of making of such Refunding Advance or Swing
Line Advance:
SECTION 6.3.1. No Bankruptcy. (i) No Event of Bankruptcy of the type
described in clauses (a) or (b) of the definition thereof with respect to NFC
shall have occurred and be continuing
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and (ii) no Event of Bankruptcy of the type described in clauses (a) or (b) of
the definition thereof with respect to (1) the A Credit Enhancer shall have
occurred and be continuing at any time prior to the funding in full of the Cash
Collateral Account A and (2) the B Credit Enhancer shall have occurred and be
continuing at any time prior to the funding in full of the Cash Collateral
Account B and the Cash Collateral Account C.
SECTION 6.3.2. Availability. The sum of (a) the amount available to be
drawn under the Fronting Letters of Credit for LOC Credit Disbursements plus the
amount of Support Liquidity Disbursements available for Conversion to Support
Credit Disbursements and (b) the amount on deposit in the Cash Collateral
Accounts for LOC Credit Disbursements, shall not have been reduced to zero.
SECTION 6.3.3. No Borrowing Base Deficiency. A Borrowing Base Deficiency
shall not exist after giving effect to the application of such Refunding Advance
or Swing Line Advance; provided, however, that this provision shall not release
the Liquidity Lenders from the obligation (upon receipt of a Borrowing Request
in the appropriate amount) to make Refunding Advances or Swing Line Advances up
to the amount of the then current Borrowing Base that would not cause a
Borrowing Base Deficiency to exist.
SECTION 6.3.4. Borrowing Request. The Liquidity Agent shall have received a
Borrowing Request for such Borrowing.
SECTION 6.3.5. Borrowing Base Certificate. The Liquidity Agent shall have
received an Officer's Certificate, dated the date of the making of such
Refunding Advance or Swing Line Advance, duly executed and delivered by an
Authorized Officer of NFC, certifying the amount of the Borrowing Base as of the
close of business on the day immediately preceding such date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Liquidity Lenders and the Liquidity Agent to enter into this
Liquidity Agreement and to make Liquidity Advances hereunder, NFC represents and
warrants to the Liquidity Agent and each Liquidity Lender as set forth in this
Article VII.
SECTION 7.1. Existence and Power. NFC is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
is duly qualified to do business as a foreign corporation and in good standing
under the laws of each jurisdiction where the character of its property,
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the nature of its business or the performance of its obligations make such
qualification necessary, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
There have been no amendments to the Organic Documents of NFC since the
respective dates of the certified copies furnished to the Liquidity Agent
pursuant to Section 6.1.1, other than amendments, if any, not prohibited by this
Liquidity Agreement (copies of which have been furnished to the Liquidity
Agent).
SECTION 7.2. Authorization. The execution, delivery and performance by NFC
of this Liquidity Agreement and each of the other Related Documents to which it
is a party are within NFC's corporate powers and have been duly authorized by
all necessary corporate action. This Liquidity Agreement and each other Related
Document to which NFC is a party have been duly executed and delivered by NFC.
SECTION 7.3. Binding Effect. This Liquidity Agreement and each other
Related Document to which NFC is a party constitutes a legal, valid and binding
obligation of NFC enforceable against NFC in accordance with its respective
terms (except as may be limited by bankruptcy, moratorium or other laws
affecting creditors' rights generally and subject to limitations imposed by
equitable principles).
SECTION 7.4. Financial Information: Financial Condition. All balance
sheets, all statements of operations, of shareholders' equity and of cash flow,
and other financial data (other than projections) which have been or shall
hereafter be furnished by NFC to Liquidity Lenders pursuant to Section 8.1.1
have been and will be Prepared in accordance with GAAP (to the extent
applicable) and do and will present fairly the financial condition of the
entities involved as of the dates thereof and the results of their operations
for the periods covered thereby, subject, in the case of all unaudited
statements, to normal year-end adjustments and lack of footnotes and
presentation items.
SECTION 7.5. Litigation. There is no action, suit or proceeding pending
against or, to the knowledge of NFC, threatened against NFC before any court or
arbitrator or any Governmental Authority in which there is a reasonable
possibility of an adverse decision that could materially adversely affect the
consolidated financial position, consolidated results of operations, business,
properties, performance, prospects or condition (financial or otherwise) of NFC
or which in any manner draws into question the validity or enforceability of
this Liquidity Agreement or any other Related Document or the ability of NFC to
comply with any of the respective terms thereunder.
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SECTION 7.6. No ERISA Plan. NFC has not established and does not maintain
or contribute to any employee benefit plan that is covered by Title IV of ERISA,
and will not do so, so long as the Liquidity Commitment Termination Date has not
occurred, or any amount is owing to a Liquidity Lender hereunder.
SECTION 7.7. Tax Filings and Expenses. NFC has filed all federal, state and
local tax returns and all other tax returns which, to the knowledge of NFC, are
required to be filed (whether informational returns or not), and has paid all
taxes due, if any, pursuant to said returns or pursuant to any assessment
received by NFC, except such taxes, if any, as are being contested in good faith
and for which adequate reserves have been set aside on its books. NFC has paid
all fees and expenses required to be paid by it in connection with the conduct
of its business, the maintenance of its corporate existence and its
qualification as a foreign corporation authorized to do business in each State
in which it is required to so qualify, except where the failure to pay any such
fees and expenses is not reasonably likely to have a Material Adverse Effect.
SECTION 7.8. Disclosure. The materials listed on Annex B hereto and
furnished to the Liquidity Agent or any Liquidity Lender in connection with this
Liquidity Agreement were at the time the same were so furnished, complete and
correct in all material respects.
SECTION 7.9. Investment Company Act; Securities Act. NFC is not controlled
by an "investment company" and is not required to register as an "investment
company" under the Investment Company Act. The Commercial Paper Notes are exempt
from registration under Section 3(a)(3) of the Securities Act of 1933, as
amended. It is not necessary in connection with the issuance of the Commercial
Paper Notes under the circumstances contemplated by this Liquidity Agreement and
the other Related Documents to qualify any indenture under the Trust Indenture
Act of 1939, as amended.
SECTION 7.10. Margin Regulations. No proceeds of any Liquidity Advance or
the sale of any Commercial Paper Note will be used to purchase or carry any "as
"margin stock" (as defined or used in Regulation G, T, U or X of the F.R.S.
Board or any successor thereto) or to extend credit to others for such purpose.
NFC is not engaged in the business of extending credit for the purpose of
purchasing or carrying any margin stock.
SECTION 7.11. No Consent. No consent, action by or in respect of, approval
or other authorization of, or registration, declaration or filing with, any
Governmental Authority or other Person is required for the valid execution and
delivery and performance of this Liquidity Agreement or any other Related
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Document by NFC for the payment of any amounts by NFC hereunder or thereunder or
for the performance of any of NFC's obligations hereunder or thereunder other
the" such consents, approvals, authorizations, registrations, declarations or
filings as shall have been obtained by NFC prior to the Closing Date.
SECTION 7.12. No Violation of Laws, etc. The execution and delivery of this
Liquidity Agreement and each of the other Related Documents, compliance with the
provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein will not result in (a) a breach or violation of,
and do not contravene, or constitute a default under, (i) any law or
governmental rule or regulation applicable to NFC now in effect, (ii) any
provision of any Organic Document of NFC, (iii) any judgment, injunction, order
or decree of any Governmental Authority against NFC or any of its assets, or
(iv) any agreement, contract or instrument to which NFC is a party or by which
it or any of its assets is bound, (b) the acceleration of any obligations of
NFC, or (c) the creation or imposition of any Lien on any assets of NFC other
than in favor of the Agent or the Master Collateral Agent or as permitted by the
Related Documents.
SECTION 7.13. Ownership; Subsidiaries. As of the Closing Date, 100% of the
common stock of NFC is owned by National. As of the Closing Date, NFC has no
Subsidiaries and owns no capital stock of, or other interest in, any other
Person.
SECTION 7.14. Solvency. Both before and after giving effect to the
transactions contemplated by this Liquidity Agreement and the other Related
Documents, NFC is solvent and NFC is not the subject of any voluntary or
involuntary case or proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy or insolvency
law, or of any other event of the type described in Section 9.1.7 hereof.
SECTION 7.15. No Security Interest. (A) There is no effective financing
statement listing NFC as debtor (other than any which may have been filed on
behalf of the Agent) covering any of the Assigned Collateral that is on file in
any public office; (B) at the date of each deposit of Deposited Funds in the
Commercial Paper Account there are no Liens on the Deposited Funds or the
Commercial Paper Account, except the assignment made pursuant to the Collateral
Agreement in favor of the Agent; and (C) NFC is and will be the lawful owner of
(with good and marketable title to), and has and will have beneficial ownership
of (or the benefit, through the Master Collateral Agent, of a first priority
perfected security interest, in the case of the Vehicles and the Repurchase
Programs), all Assigned Collateral, free and clear of all Liens except Permitted
Liens.
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SECTION 7.16. Repurchase Programs. On the date of each Borrowing, each
Manufacturer and each Repurchase Program in respect of which any portion of the
Borrowing Base is calculated (including any portion of the Borrowing Base
comprising the value of any Loans used to purchase Vehicles from such
Manufacturer or finance Vehicles of such Manufacturer) shall be an Eligible
Manufacturer and Eligible Repurchase Program, respectively.
SECTION 7.17. Other Representations. All representations and warranties of
NFC made in each Related Document to which it is a party are true and correct
(in all material respects to the extent any such representations and warranties
do not incorporate a materiality limitation in their terms) and are repeated
herein as though fully set forth herein.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. NFC covenants and agrees with the
Liquidity Agent and each Liquidity Lender that, until all Liquidity Commitments
have terminated and all Obligations have been paid or performed in full, unless
the Majority Banks shall otherwise consent in writing, NFC will perform the
covenants set forth in this Section 8.1.
SECTION 8.1.1. Information. NFC will deliver to the Liquidity Agent, each
Rating Agency, the Placement Agents and the Dealers:
(a) promptly upon the delivery by National to NFC, a copy of the
financial information and other materials required to be delivered by
National to NFC and the Agent pursuant to Section 9.7(i) of the Loan
Agreement;
(b) promptly upon the delivery by National to NFC, copies of the
financial information and other materials required to be delivered by
National to NFC and the Agent pursuant to Section 9.7(ii) of the Loan
Agreement;
(c) from time to time such additional information regarding the
financial position, results of operations or business of National and its
Subsidiaries as the Liquidity Agent may reasonably request to the extent
that National delivers such information to NFC pursuant to Section 9.7(vi)
of the Loan Agreement;
(d) at the time of delivery of the items described in clauses (a) and
(b) above, a consolidating balance sheet and statement of earnings in
respect of National and its
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Subsidiaries as of such date or for the year to date period ending on such
date;
(e) at the time of delivery of the items described in clauses (a) and
(b) above, a certificate of an officer of NFC that, except as provided in
any certificate delivered in accordance with Section 8.1.9, no Amortization
Event, Loan Event of Default or (to the best of such officer's knowledge)
Potential Amortization Event or Potential Loan Event of Default has
occurred or is continuing during such fiscal quarter;
(f) on or prior to June 30 of each year, a certificate of the chief
financial officer of NFC certifying that (i) the ratings assigned by the
Rating Agencies in respect of the commercial paper issued by NFC have not
been withdrawn or downgraded below A-1 by S&P or P-1 by Xxxxx'x since the
date of thin Liquidity Agreement, (ii) no Rating Agency has determined that
the face amount of either of the Fronting Letters of Credit must be
increased, (iii) no change in the Repurchase Program of any Manufacturer in
respect of any new model year shall have given rise to any request on the
part of the Rating Agencies that any modification be made to the Loan
Agreement or any other Related Document, and (iv) NFC has apprised the
Rating Agencies of all material changes in the Repurchase Programs
occurring since the date of this Liquidity Agreement;
(g) promptly following the introduction of any prospective change in
any Repurchase Program or the introduction of any new Repurchase Program by
an existing Manufacturer, notice and a copy of the same;
(h) on or prior to the twentieth day of each month (or if such day is
not a Business Day, on the next succeeding Business Day), a copy of the
Monthly Report relating to the Assigned Collateral as of the last Business
Day of the immediately preceding month received by NFC from National
pursuant to Section 9.7(iv) of the Loan Agreement; and
(i) on each Business Day when any Liquidity Advance is outstanding NFC
shall cause the Agent to provide to the Liquidity Agent a statement setting
forth (A) the maturity date and face amount of each outstanding Commercial
Paper Note and (B) the aggregate principal amount of outstanding Liquidity
Advances (or, at NFC's option, a statement updating any statement
previously provided by NFC to the Liquidity Agent which contained such
information as of a prior date);
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SECTION 8.1.2. Compliance with Covenants. NFC will comply with all
covenants made by it and contained in each Related Document to which it is a
party (subject to the grace periods set forth therein).
SECTION 8.1.3. Payment of Obligations. NFC will pay and discharge, at or
before maturity, all of its respective obligations and liabilities, including,
without limitation, tax liabilities and other governmental claims, except where
the same may be contested in good faith by appropriate proceedings, and will
maintain, in accordance with GAAP, reserves as appropriate for the accrual of
any of the same.
SECTION 8.1.4. [Reserved].
SECTION 8.1.5. Maintenance of Existence. NFC will maintain its existence as
a corporation validly existing and in good standing under the laws of the State
of Delaware and duly qualified as a foreign corporation licensed under the laws
of each state in which the failure to 80 qualify would have a material adverse
effect on the business and operations of NFC.
SECTION 8.1.6. Compliance with Laws. NFC will comply with all applicable
laws, ordinances, rules, regulations, and requirements of Governmental
Authorities (including, without limitation, ERISA and the rules and regulations
thereunder) except where the failure to comply therewith is not reasonably
likely to have a material adverse effect on the business and operations of NFC.
SECTION 8.1.7. Inspection of Property, Books and Records. NFC will keep
proper books of record and account in which full, true and correct entries shall
be made of all dealings and transactions in relation to its Assets, business and
activities in accordance with GAAP; and will permit representatives of the
Liquidity Agent and, if an Amortization Event shall have occurred and is
continuing, representatives of any Liquidity Lender, at NFC's expense, to visit
and inspect any of its properties, to examine and make abstracts from any of its
books and records and to discuss its affairs, finances and accounts with its
officers, directors, employees and independent public accountants, all at such
reasonable times and as often as the Liquidity Agent or such Liquidity Lender
may reasonably deem appropriate (but not more often than once a month in the
case (i) of any Liquidity Lender and (ii) of the Liquidity Agent prior to the
occurrence of an Amortization Event).
SECTION 8.1.8. Absence of Certain Actions. NFC will not take any action
which would permit National to have the right to refuse to perform any of its
obligations under the Loan Agreement.
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SECTION 8.1.9. Notice of Default. Promptly upon becoming aware of any
Potential Amortization Event, Potential Loan Event of Default, Loan Event of
Default or Amortization Event, NFC shall give the Liquidity Agent, the Dealers
and each Rating Agency notice thereof, together with a certificate of the
President, vice President or the principal financial officer of NFC setting
forth the details thereof and any action with respect thereto taken or
contemplated to be taken by NFC.
SECTION 8.1.10. Notice of Material Proceedings. Promptly upon becoming
aware thereof, NFC shall give the Liquidity Agent, the Dealers and each Rating
Agency written notice of the commencement or existence of any proceeding by or
before any Governmental Authority against or affecting NFC which is reasonably
likely to have a material adverse effect on the business, condition (financial
or otherwise), results of operations, properties or performance of NFC or the
ability of NFC to perform its obligations under this Liquidity Agreement or
under any other Related Document to which it is a party.
SECTION 8.1.ll. Further Requests. NFC will promptly furnish to the
Liquidity Agent and each Rating Agency such other information as, and in such
form as, the Liquidity Agent or any Rating Agency may reasonably request.
SECTION 8.1.12. [Reserved].
SECTION B.1.13. Further Assurances. NFC agrees to do such further acts and
things, and to execute and deliver to the Liquidity Agent such additional
assignments, agreements, powers and instruments, as the Liquidity Agent
reasonably determines to be necessary to carry into effect the purposes of this
Liquidity Agreement or to better assure and confirm unto the Liquidity Agent its
rights, powers and remedies hereunder.
SECTION 8.1.14. Repurchase Programs. NFC agrees that it will (i) provide
the Liquidity Agent, the Dealers and each Rating Agency with at least 30 days'
prior written notice of its intention to make Loans to National under the Loan
Agreement for the purchase or financing of Vehicles manufactured by any new
Manufacturer, (ii) provide the Liquidity Agent, the Dealers and each Rating
Agency with a copy of the draft Repurchase Program of such Manufacturer as it
then exists at the time of such notice and a copy of the final Repurchase
Program promptly upon its being available and (iii) certify to the Liquidity
Agent and the Liquidity Lenders that such new Manufacturer is an Eligible
Manufacturer and that such Repurchase Program is an Eligible Repurchase Program
at such time. In no event shall NFC agree, to the extent any consent of NFC is
solicited or required by the Manufacturer or any assignor of such Repurchase
Program, to any change in any Repurchase Program that is reasonably likely to
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materially adversely affect its rights or the rights of the Secured Parties with
respect to any Vehicle previously purchased under such Repurchase Program.
SECTION 8.1.15. Use of Proceeds of Commercial Paper Notes. NFC shall use
the proceeds of the Commercial Paper Notes solely for one or more of the
following purposes: (a) to pay matured Commercial Paper Notes when due, in
accordance with the Depositary Agreement; (b) to fund Loaner and (c) to pay
principal of, or interest on, any Liquidity Advance or any other amount payable
by NFC under this Liquidity Agreement or to reimburse the Support Credit
Enhancers or the Cash Reserve Account for any Support Liquidity Disbursement and
any interest thereon or the Cash Collateral Accounts for any LOC Liquidity
Disbursement and any interest thereon.
Notwithstanding any provision of this Liquidity Agreement, on any day when
any Liquidity Advance is outstanding, NFC shall not use the net proceeds of the
issuance of Commercial Paper Notes to fund Loans.
SECTION 8.1.16. Vehicles. NFC shall use commercially reasonable efforts to
cause National to maintain good, legal and marketable title to the Vehicles
purchased with proceeds of Loans, free and clear of all Liens except for
Permitted Liens.
SECTION 8.2. Negative Covenants. NFC covenants and agrees with the
Liquidity Agent and each Liquidity Lender that until all Liquidity Commitments
have been terminated and all Obligations have been paid or performed in full,
unless the Majority Banks otherwise consent in writing, NFC will perform the
obligations set forth in this Section 8.2.
SECTION 8.2.1. Liens. NFC will not create, incur, assume or permit to exist
any Lien upon any of its Assets (including the Assigned Collateral), the
Accounts, the Commercial Paper Account, the Cash Collateral Accounts or the
Deposited Funds, other than Liens created by or permitted under the Related
Documents.
SECTION 8.2.2. Other Indebtedness. Without (a) the prior written consent of
the Majority Banks and (b) the prior receipt of written confirmation of the
Rating Agencies that any such action will not result in the downgrading or
withdrawal of the then current rating. of the Commercial Paper Notes by the
Rating Agencies, NPC will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness other than
Indebtedness under this Liquidity Agreement, Indebtedness evidenced by the
Commercial Paper Notes and Indebtedness under or permitted under any other
Related Document.
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SECTION 8.2.3. Consolidations and Mergers . NFC will not, except as may be
permitted by the express written approval of the Majority Banks and upon the
receipt of written confirmation of the Rating Agencies that such action will not
result in the downgrading on withdrawal of the then current ratings on the
Commercial Paper Notes of the Rating Agencies, merge with or into, enter into
any joint venture or other association with, or consolidate with, any other
Person.
SECTION 8.2.4. Sales of Assets. NFC will not sell, lease, transfer,
liquidate or otherwise dispose of any Assets, except as contemplated by the
Related Documents and provided that the proceeds thereof are paid directly to
the Collateral Account.
SECTION 8.2.5. Acquisition of Assets. NFC will not acquire, by long-term or
operating lease or otherwise, any Assets, except pursuant to the terms of the
Related Documents.
SECTION 8.2.6. Dividends, Officers' Compensation. etc. NFC will not declare
or pay any dividends on any shares of its capital stock or make any other
distribution on, or any purchase, redemption or other acquisition of, any shares
of its capital stock, or pay any wages or salaries or other compensation to
officers, directors, employees or others except out of earnings computed in
accordance with GAAP.
SECTION 8.2.7. Name; Chief Executive Office. NFC will neither (i) change
the location of its chief executive office (within the meaning of the UCC)
without sixty (60) days' prior notice to the Agent, the Liquidity Agent and each
Rating Agency nor (ii) change its name without prior notice to the Agent, the
Liquidity Agent and each Rating Agency sufficient to allow the Agent to make all
filings (including filings of financing statements on form UCC-1) and recordings
necessary to perfect the interest of the Agent in the Assigned Collateral
pursuant to the Collateral Agreement.
SECTION 8.2.8. Organic Documents. NFC will not amend any of its Organic
Documents without the written consent of the Majority Banks and each of the
Rating Agencies.
SECTION 8.2.9. Investments. NFC will not make, incur, or suffer to exist
any loan, advance, extension of credit to, or other investment in, any Person
other than pursuant to the Loan Agreement and with respect to Eligible
Investments.
SECTION 8.2.10. No Other Agreements; Amendments to Related Documents. NFC
will not, without the prior written consent of the Majority Banks and GM, (i)
enter into or be a party to any material agreement or instrument other than any
Related Document or documents and agreements incidental thereto or (ii) amend,
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modify, waive or give any approval, consent or permission under, any provision
of any Related Document to which it is a party other than, in the case of the
Loan Agreement, A Support Reimbursement Agreement, B Letter of Credit
Reimbursement Agreement, B Support Letter of Credit Reimbursement Agreement or
the Depositary Agreement, such amendments that relate to minor administrative
matters that do not amend or modify (A) the amount or timing of any payments (or
priorities for payments) to be made under the Related Documents, (B) any rights
in the Assigned Collateral (or any priorities or rights or restrictions on
encumbrances with respect thereto), or (C) any prohibition or restriction on the
incurrence of any Indebtedness under the Related Documents. Notwithstanding the
foregoing provisions of this Section 8.2.10, NFC may, at any time and from time
to time, without the consent of the Majority Banks, enter into any amendment,
supplement or other modification to any Related Document, in form and substance
satisfactory to the Liquidity Agent, to cure any apparent ambiguity or to
correct or supplement any inconsistent provisions therein; provided, however,
that (i) any such action shall not have a materially adverse effect on the
interests of the Liquidity Lenders and (ii) a copy of such amendment, supplement
or other modification is furnished to the Liquidity Lenders and each of the
Rating Agencies in accordance with the notice provisions hereof not later than
ten days prior to the execution thereof.
SECTION 8.2.11. Other Business. NFC will not engage in any business or
enterprise or enter into any transaction other than the making of Loans to
National under the Loan Agreement, the related exercise of its rights as a
secured creditor, the issuance of Commercial Paper Notes, the incurrence of
Indebtedness under thin Liquidity Agreement, the A Support Reimbursement
Agreement, the B Letter of Credit Reimbursement Agreement and the B Support
Letter of Credit Reimbursement Agreement, the incurrence and payment of ordinary
course operating expenses and as otherwise contemplated by the Related
Documents.
SECTION 8.2.12. Maintenance of Separate Existence. NFC will do all things
necessary to maintain its corporate existence separate and apart from that of
National and Affiliates of National including, without limitation, (i)
practicing and adhering to corporate formalities, such as maintaining
appropriate corporate books and records; (ii) maintaining at least two corporate
directors who are Independent Directors; (iii) owning or leasing (including
through shared arrangements with Affiliates) all office furniture and equipment
necessary to operate its business; (iv) not (A) guaranteeing or otherwise
becoming liable for any obligations of any of its Affiliates, (B) having
obligations guaranteed by any of its Affiliates, (C) holding itself out as
responsible for debts of any of its
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Affiliates or for decisions or actions with respect to the affairs of any of its
Affiliates and (D) being directly or indirectly named as a direct or contingent
beneficiary or loss payee on any insurance policy of any Affiliate other than as
required by the Related Documents with respect to insurance on the Vehicles; (v)
other than as provided in the Related Documents, maintaining its deposit and
other bank accounts and all of its assets separate from those of any other
Person; (vi) maintaining its financial records separate and apart from those of
any other Person; (vii) compensating all its employees, officers, consultants
and agents for services provided to it by such Persons, or reimbursing any of
its Affiliates in respect of services provided to it by employees, officers,
consultants and agents of such Affiliate, out of its own funds; (viii)
maintaining office space separate and apart from that of any of its Affiliates
(even if such office space is subleased from or is on or near premises occupied
by any of its Affiliates) and a telephone number separate and apart from that of
any of its Affiliates; (ix) accounting for and managing all of its liabilities
separately from those of any of its Affiliates; (x) allocating, on an
arm's-length basis, all shared corporate operating services, leases and
expenses, including, without limitation, those associated with the services of
shared consultants and agents and shared computer and other office equipment and
software; (xi) refraining from filing or otherwise initiating or supporting the
filing of a motion in any bankruptcy or other insolvency proceeding involving
NFC, National or any Affiliate of National, to substantively consolidate NFC
with National or any Affiliate; (xii) remaining solvent and (xiii) conducting
all of its business (whether written or oral) solely in its own name. NFC
acknowledges its receipt of a copy of that certain opinion letter issued by
Xxxxx, Xxxxx & Xxxxx dated June 7, 1995 and addressing the issue of substantive
consolidation as it may relate to National, each Affiliate of National and NFC.
NFC hereby agrees to maintain in place all policies and procedures, and take and
continue to take all action, described in the factual assumptions set forth in
such opinion letter and relating to NFC.
SECTION 8.2.13. Offering Document. NFC will not include in any offering
document for the Commercial Paper Notes any information regarding any Liquidity
Lender which was not approved or furnished by such Liquidity Lender.
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ARTICLE IX
AMORTIZATION EVENTS
SECTION 9.1. Amortization Event. Each of the following events or
occurrences described in this Section 9.1 shall constitute an
"Amortization Event".
SECTION 9.1.1. Non-Payment of Obligations. NFC shall (a) fail to
repay maturing Commercial Paper Notes when due; (b) fail to make a
payment within two Business Days of the Scheduled Maturity Date or
prepayment (as a result of a mandatory prepayment requirement under
Section 4.1.2) of principal of any Liquidity Advance within two Business
Days of the date on which such payment is due; or (c) fail to make a
payment of any interest on any Liquidity Advance, any fees or any other
amounts payable hereunder within five Business Days of the date on which
such payment is due.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty
made by NFC herein or in any other Related Document to which it is a
party shall have been incorrect in any material respect (to the extent
that any such representation or warranty does not incorporate a
materiality limitation in its terms) as of the date such representation
or warranty is made and, which continues to be incorrect in any material
respect (to the extent that any such representation or warranty does not
incorporate a materiality limitation in its terms) for a period of 30
days after the earlier of (i) the date on which written notice thereof
shall have been given to NFC by the Liquidity Agent or any Liquidity
Lender and (ii) the date on which NFC obtains actual knowledge thereof,
or any certificate, financial statement or any other material writing
furnished by NFC pursuant to this Liquidity Agreement or any such other
Related Document shall have been incorrect in any material respect when
made (or deemed made) and, which continues to be incorrect in any
material respect for a period of 10 days (other than with respect to any
Officer's Certificate delivered with respect to the Borrowing Base, for
which such period is one Business Day) after the earlier of (a) the date
on which written notice thereof shall have been given to NFC by the
Liquidity Agent or any Liquidity Lender and (b) the date on which NFC
obtains actual knowledge thereof.
SECTION 9.1.3. Non-Performance of Certain Covenants and
Obligations. NFC shall default in the due performance and observance of
any of its obligations under Section 8.2 and such default shall continue
unremedied for a period of ten days after the earlier of (i) the date on
which written notice thereof shall have been given to NFC by the
Liquidity Agent or any Liquidity Lender and (ii) the date on which NFC
obtains actual knowledge thereof.
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SECTION 9.1.4. Non-Performance of Other Covenants and Obligations.
NFC shall default in the due performance and observance of any covenant
or agreement contained herein or in any other Related Document to which
it is a party (other than those specified in Sections 9.1.1, 9 1.2 and
9.1.3), and, in the case of defaults other than with respect to Section
8.1.8 or 8.1.9, such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to NFC by the Liquidity
Agent or any Liquidity Lender or, in the case of Section 8.1.8 or 8.1.9,
such default shall continue unremedied for a period of 30 days after NFC
initially becomes aware of such failure to perform or comply with such
covenant.
SECTION 9.1.5. [Reserved].
SECTION 9.1.6. Judgments. Any final and unappealable (or, if
capable of appeal, such appeal is not being diligently pursued or
enforcement thereof has not been stayed) judgment or order for the
payment of money in excess of $100,000, shall be rendered against NFC and
such judgment or order shall continue unsatisfied and unstayed for a
period of 30 days.
SECTION 9.1.7. Bankruptcy. Insolvency. etc. The occurrence of any
Event of Bankruptcy with respect to NFC or National.
SECTION 9.1.8. Letters of Credit. Any of the following shall
occur: (a) the A Letter of Credit or the B Letter of Credit shall not be
in full force or effect unless the aggregate amount on deposit in the
Cash Collateral Accounts is equal to the amount described in clause
(c)(i) or (ii) below, as applicable; (b) (1) the A Letter of Credit
Expiration Date shall have occurred without renewal or extension, an A
LOC Termination Disbursement has not been made and no cash collateral
account or other substitute enhancement has been provided or (2) the B
Letter of Credit Expiration Date shall have occurred without renewal or
extension, a B LOC Termination Disbursement has not been made and no cash
collateral account or other substitute enhancement has been provided; or
(c) the Fronting Letter of Credit Amount available for A LOC Credit
Disbursements and B LOC Credit Disbursements plus the amount of Support
Liquidity Disbursements available for Conversion to Support Credit
Disbursements is, for a period of one business day, less than (i) the
Required Enhancement Amount in effect on such day or (ii) from and after
the occurrence of an Amortization Event, the amount described in clause
(c)(i) that shall have been in effect on the day immediately preceding
the occurrence of such Amortization Event.
SECTION 9.1.9. Insolvency of Fronting Credit Enhancers. (a) Unless
the Cash Collateral Account A shall theretofore have been funded to the
full extent required under the terms of the
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Collateral Agreement upon an A Termination Demand, an Event of Bankruptcy
shall have occurred with respect to the A Credit Enhancer or the A Credit
Enhancer shall have repudiated the A Letter of Credit or shall have
refused to honor a proper draw thereon or (b) unless the Cash Collateral
Account B and the Cash Collateral Account C shall theretofore have been
funded to the full extent required under the terms of the Collateral
Agreement upon a B Termination Demand, an Event of Bankruptcy shall have
occurred with respect to the B Credit Enhancer or the B Credit Enhancer
shall have repudiated the B Letter of Credit or shall have refused to
honor a proper draw thereon.
SECTION 9.1.10. Independent Directors. NFC shall fail to have two
or more Independent Directors on its board and such failure shall have
continued for a period of 30 days.
SECTION 9.1.11. Enforceability of or Default under Related
Documents. (a) Any of the Related Documents or any portion thereof shall
not be in full force and effect, enforceable in accordance with its terms
or NFC, National or any Manufacturer shall so assert in writing or (b)
any Loan Event of Default or Event of Default shall occur.
SECTION 9.1.12. Investment Company. NFC shall have become an
"investment company" or shall have become under the "control" of an
"investment company" under the Investment Company Act.
SECTION 9.1.13. Termination of Loan Commitment. The Loan
Commitment Termination Date shall have occurred.
SECTION 9.1.14. Program Downgrade. The rating on the Commercial
Paper Notes shall have been downgraded to A-2 by S&P or P-2 by Xxxxx'x,
or less, or withdrawn and all of the Liquidity Lenders shall have a
rating of A-1, or better, by S&P and P-1 by Xxxxx'x.
SECTION 9.1.15. Termination of Liquidity Commitments or Reduction
of Aggregate Liquidity Commitment. The Liquidity Commitment Termination
Date with respect to all Liquidity Lenders shall have occurred or the
Aggregate Liquidity Commitment is reduced due to the failure of certain
Liquidity Lenders to renew their Liquidity Commitments on any date to 50%
or less than the Aggregate Liquidity Commitment in effect immediately
prior to such reduction.
SECTION 9.2. Action if Amortization Event. If any Amortization
Event set forth in Sections 9.1.1, 9.1.6, 9.1.8, 9.1.9, 9.1.10, 9 1.12,
9.1.13, 9.1.14 or 9.1.15 shall have occurred and be continuing, the
Agent, upon having actual knowledge thereof, without the request or
consent of the Liquidity Agent or the Majority Banks, in every such event
and at
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any time thereafter during the continuance of such event, shall, and if
any Amortization Event has occurred, the Agent, at the request or with
the consent of the Majority Banks conveyed through the Liquidity Agent,
shall, in every such event and at any time thereafter during the
continuance of such event, by notice to NFC and National, at the same or
different times, notify the Depositary, the Placement Agents and the
Dealers of the occurrence of such Amortization Event, and instruct NFC
and the Depositary to cease issuing Commercial Paper Notes and the right
of NFC to issue Commercial Paper Notes shall automatically terminate. If
any Amortization Event occurs under Section 9.1.7, without giving effect
to any grace periods included in the definition of Event of Bankruptcy,
the Liquidity Agent will instruct the Depositary and NFC to cease issuing
Commercial Paper Notes. In addition, the Liquidity Agent may, (i) upon
the occurrence of any Amortization Event, terminate the Liquidity
Commitments hereunder if such Amortization Event is pursuant to Section
9.1.7 with respect to NFC or Section 9.1.8(a) (unless another form of
Credit Enhancement is available); (ii) upon the occurrence of any event
specified in Sections 9.1.1 through 9.1.12 or 9.1.14 at the request, or
with the consent, of Liquidity Lenders then holding, in the aggregate,
Liquidity Commitments in excess of 50% of the Aggregate Liquidity
Commitment (or, if the Aggregate Liquidity Commitment shall have been
terminated, Liquidity Lenders then holding, in the aggregate in excess of
50% of the principal amount of Liquidity Advances then outstanding), by
notice to NFC, declare the aggregate principal amount of any Liquidity
Advances then outstanding, together with accrued interest and all fees
and other Obligations hereunder, immediately due and payable whereupon
all such principal, accrued interest, fees and other Obligations
hereunder shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by NFC; provided, however, that in the case
of any Amortization Event under Section 9.1.7 with respect to NFC, (A)
the Liquidity Commitment of each Liquidity Lender shall automatically be
terminated and (B) all such principal, interest, fees and other
Obligations shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by NFC; (iii) instruct NFC to terminate the Loan
Commitment and cease funding the purchase or financing of Vehicles under
the Loan Agreement; and (iv) pursue any other right or remedy under this
Liquidity Agreement and the other Related Documents or under applicable
law or otherwise.
SECTION 9.3. Limited Amortization Events. Each of the following
events or occurrences described in this Section 9.3 shall constitute a
"Limited Amortization Event".
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SECTION 9.3.1. Ineligibility of Manufacturer or Repurchase
Program. (a) Any Manufacturer or any Repurchase Program shall cease to be
an Eligible Manufacturer or an Eligible Repurchase Program, respectively,
(b) a Manufacturer whose Repurchase Program is a Guaranteed Depreciation
Program and/or any related auction dealers, or any other Manufacturer,
shall fail to pay an aggregate amount in excess of the lesser of $25
million and the aggregate amount of repurchase obligations of such
Manufacturer under its Repurchase Program in respect of Vehicles that are
subject to Loans (or such other amount as shall have been agreed to for
this purpose by NFC and the Majority Banks at the time that NFC proposes
such Manufacturer for consideration as an "Eligible Manufacturer under
the Related Documents), in each case, owed by it in respect of any
Vehicles turned back in accordance with the terms of the related
Repurchase Program and such failure shall continue for 90 days after the
respective Turnback Dates for such Vehicles or (c) any Event of
Bankruptcy shall have occurred with respect to any Manufacturer.
SECTION 9.3.2. Termination of Liquidity Commitment. The Liquidity
Commitment of any Liquidity Lender shall have been terminated and NFC
shall have failed to replace any such Liquidity Lender.
SECTION 9.3.3. Rating Downgrade of Liquidity Lender. A Rating
Downgrade below A-2 by S&P or P-2 by Xxxxx'x shall occur and be
continuing for 60 days (or such other period permitted by the Rating
Agencies) with respect to any Liquidity Lender and such Liquidity Lender
shall not have been replaced pursuant to Section 5.9 hereof.
SECTION 9.4. Action Upon Limited Amortization Event.
(a) If any Limited Amortization Event set forth in
Section 9.3.1 shall have occurred and be continuing with respect
to any Manufacturer, NFC shall not make any further Loans under
the Loan Agreement to fund the purchase or financing of Vehicles
of such Manufacturer, no Commercial Paper Notes shall be issued to
finance any such purchase or financing and no Liquidity Lender
shall be required to make any Revolving Advance or Swing Line
Advance with respect to any such purchase or financing.
(b) If any Limited Amortization Event set forth in
Section 9.3.2 shall have occurred and be continuing, then NFC
shall not issue Commercial Paper Notes to the extent that after
giving effect to such issuance (and the use of proceeds thereof),
the Aggregate Face Amount shall exceed the Program Size (reduced
by the aggregate Liquidity
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Commitments of the Liquidity Lenders that have been terminated).
(c) If any Limited Amortization Event set forth in
Section 9.3.3 shall have occurred and be continuing, then NFC
shall not issue Commercial Paper Notes to the extent that after
giving effect to such issuance (and the use of proceeds thereof),
the Aggregate Face Amount shall exceed the Program Size (reduced
by the aggregate Liquidity Commitments of the Affected Liquidity
Lenders).
ARTICLE X
THE LIQUIDITY AGENT
SECTION 10.1. Actions. Each Liquidity Lender hereby appoints
Citibank as its Liquidity Agent under and for purposes of this Liquidity
Agreement, the Liquidity Advance Notes and each other Related Document.
Each Liquidity Lender hereby authorizes the Liquidity Agent to act on
behalf of such Liquidity Lender under this Liquidity Agreement, the
Liquidity Advance Notes and each other Related Document and, in the
absence of other written instructions from the Majority Banks received
from time to time by the Liquidity Agent (with respect to which the
Liquidity Agent agrees that it will comply, except as otherwise provided
in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or
required of the Liquidity Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Liquidity
Lender hereby indemnifies (which indemnity shall survive any termination
of this Liquidity Agreement) the Liquidity Agent, pro rata according to
such Liquidity Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of
any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Liquidity Agent in any way relating
to or arising out of this Liquidity Agreement, the Liquidity Advance
Notes and any other Related Document, including reasonable attorneys'
fees (including the allocated costs of in-house counsel), and as to which
the Liquidity Agent is not reimbursed by NFC; provided, however, that no
Liquidity Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from the Liquidity Agent's gross negligence
or wilful misconduct. The Liquidity Agent shall not be required to take
any action hereunder, under the Liquidity Advance Notes or under any
other Related Document, or to prosecute or defend any suit in respect of
this Liquidity Agreement, the Liquidity Advance Notes or any
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other Related Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Liquidity Agent shall be
or become, in the Liquidity Agent's determination, inadequate, the
Liquidity Agent may call for additional indemnification from the
Liquidity Lenders and cease to do the acts indemnified against hereunder
until such additional indemnity is given.
SECTION 10.2. Collateral Agreement. Without limiting the
authorizations otherwise set forth in this Article X, each Liquidity
Lender hereby authorizes the Liquidity Agent to execute and deliver the
Collateral Agreement and each of the other Related Documents as Liquidity
Agent and on behalf of such Liquidity Lender, with the same effect as if
such Liquidity Lender had executed the Collateral Agreement or such
Related Document in its own name. Each Liquidity Lender acknowledges that
the Collateral Agreement contains certain provisions, including, without
limitation, Section 7.02 thereof, which give rise to indemnification
obligations in respect of the Agent on the part of such Liquidity Lender
and such Liquidity Lender hereby agrees to be bound by such provisions,
as the same may from time to time be modified in accordance with the
terms of the Collateral Agreement and this Liquidity Agreement.
SECTION 10.3. Exculpation. Neither the Liquidity Agent nor any of
its directors, officers, employees or agents shall be liable to any
Liquidity Lender for any action taken or omitted to be taken by it under
this Liquidity Agreement or any other Related Document, or in connection
herewith or therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due
execution of this Liquidity Agreement or any other Related Document, nor
for the creation, perfection or priority of any Liens purported to be
created by any of the Related Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by NFC of
its obligations hereunder or under any other Related Document. Any such
inquiry which may be made by the Liquidity Agent shall not obligate it to
make any further inquiry or to take any action. The Liquidity Agent shall
be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement or writing which the
Liquidity Agent believes to be genuine and to have been presented by a
proper Person. As to any matters not expressly provided for in this
Liquidity Agreement or any other Related Document, the Liquidity Agent
shall not be required to exercise any discretion or take any action, but
shall be required to act or refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions
of the Majority Banks.
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SECTION 10.4. Successor. The Liquidity Agent may resign as such at
any time upon at least 30 days' prior written notice to NFC and all
Liquidity Lenders, and the Liquidity Agent may be removed at any time
with cause by the Majority Banks. If the Liquidity Agent at any time
shall resign or be removed, the Majority Banks may appoint (with, if no
Potential Amortization Event or Amortization Event (other than a
Scheduled Amortization Event) then exists, the consent of NFC, which
consent shall not be unreasonably withheld or delayed) another Liquidity
Lender as a successor Liquidity Agent which shall thereupon become the
Liquidity Agent hereunder. If no successor Liquidity Agent shall have
been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Liquidity Agent's giving
notice of resignation or the Majority Banks' removal of the retiring
Liquidity Agent, then the retiring Liquidity Agent may, on behalf of the
Liquidity Lenders, appoint a successor Liquidity Agent, which shall be
one of the Liquidity Lenders or an Eligible Liquidity Lender. The
resignation or removal of the Liquidity Agent shall not become effective
until a successor Liquidity Agent has been appointed and shall have
accepted such appointment. Upon the acceptance of any appointment as
Liquidity Agent hereunder by a successor Liquidity Agent, such successor
Liquidity Agent shall be entitled to receive from the retiring Liquidity
Agent such documents of transfer and assignment as such successor
Liquidity Agent may reasonably request, and shall thereupon succeed to
and become vested with all rights, powers, privileges and duties of the
retiring Liquidity Agent, and the retiring Liquidity Agent shall be
discharged from its duties and obligations under this Liquidity Agreement
and all other Related Documents. After any retiring Liquidity Agent's
resignation or removal hereunder as the Liquidity Agent, the provisions
of
(a) this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Liquidity Agent under this Liquidity Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to
inure to its benefit.
SECTION 10.5. Liquidity Advances by Citibank. Citibank (and any
successor thereto in its capacity as Liquidity Agent, that is also a
Liquidity Lender) shall have the same rights and powers with respect to
(x) the Liquidity Advances made by it or any of its Affiliates, and (y)
the Liquidity Advance Notes held by it or any of its Affiliates as any
other Liquidity Lender and may exercise the same as if it were not the
Liquidity Agent. Citibank (and such successor) and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with NFC or any Affiliate of NFC as if Citibank (and such
successor) were not the Liquidity Agent hereunder.
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SECTION 10.6. Credit Decisions. Each Liquidity Lender acknowledges
that it has, independently of the Liquidity Agent and each other
Liquidity Lender, and based on such Liquidity Lender's review of the
financial information of NFC and National, this Liquidity Agreement, the
other Related Documents (the terms and provisions of which being
satisfactory to such Liquidity Lender) and such other documents,
information and investigations as such Liquidity Lender has deemed
appropriate, made its own credit decision to extend its Liquidity
Commitment. Each Liquidity Lender also acknowledges that it will,
independently of the Liquidity Agent and each other Liquidity Lender, and
based on such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions
as to exercising or not exercising from time to time any rights and
privileges available to it under this Liquidity Agreement or any other
Related Document.
SECTION 10.7. Copies, etc. The Liquidity Agent shall give prompt
notice to each Liquidity Lender of each notice or request required or
permitted to be given to the Liquidity Agent by NFC pursuant to the terms
of this Liquidity Agreement (unless concurrently delivered to the
Liquidity Lenders by NFC). The Liquidity Agent will distribute to each
Liquidity Lender each document or instrument received for its account and
copies of all other communications received by the Liquidity Agent from
NFC for distribution to the Liquidity Lenders by the Liquidity Agent in
accordance with the terms of this Liquidity Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this
Liquidity Agreement and each other Related Document to which NFC is a
party may from time to time be amended, modified or waived, if (i) prior
written notice of such amendment, modification or waiver is given to each
of the Rating Agencies, the Placement Agents and the Dealers, (ii)
subject to Section 8.2.10 hereof as it relates to amendments of the
Related Documents other than the Liquidity Agreement, such amendment,
modification or waiver is in writing and consented to in writing by NFC,
GM and the Majority Banks and (iii) such amendment, modification or
waiver shall not, as evidenced by written confirmation of the Rating
Agencies, result in the downgrading or withdrawal of the then current
ratings of the Commercial Paper Notes by the Rating Agencies; provided,
however, that such written confirmation will not be required in
connection with the extension of a Liquidity Lender's Scheduled Liquidity
Commitment Termination Date pursuant to Section 3.5; provided further,
however, that any modification of Section 6.3 or this Section
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11.1, any requirement hereunder that any particular action be taken by
all the Liquidity Lenders or by the Majority Banks or any change in the
definition of the term "Required Liquidity Providers", "Borrowing Base
Deficiency", "Eligible Manufacturers", "Eligible Repurchase Program",
"Event of Bankruptcy" or "Majority Banks" or any defined term used for
the purpose of any such definition shall require the consent of each
Liquidity Lender and the B Support Credit Enhancers; and further provided
that any amendment, waiver or other modification that would
(a) increase the Liquidity Commitment or the Percentage
of any Liquidity Lender or reduce any fees described in Article IV
payable to any Liquidity Lender shall require the consent of such
Liquidity Lender;
(b) amend the definition of the Scheduled Maturity Date,
the Scheduled Liquidity Commitment Termination Date, or the
Liquidity Commitment Termination Date shall require the consent of
each Liquidity Lender affected thereby;
(c) extend the due date for, or reduce the amount of,
any scheduled repayment or prepayment of principal of or interest
on any Liquidity Advance of any Liquidity Lender (or reduce the
principal amount of or rate of interest on any Liquidity Advance
of any Liquidity Lender) shall require the consent of each
Liquidity Lender affected thereby;
(d) modify or waive the conditions precedent to the
effectiveness of this Liquidity Agreement set forth in Article VI
shall require the consent of each Liquidity Lender;
(e) approve the assignment or transfer by NFC of any of
its rights or obligations hereunder or under any other Related
Document to which it is a party except pursuant to the express
terms hereof or thereof shall require the consent of each
Liquidity Lender;
(f) release any of the Assigned Collateral from the Lien
under the Collateral Agreement or the Master Collateral Agency
Agreement, or release any obligor under any Related Document to
which it in a party except pursuant to the express terms of such
Related Document shall require the consent of each Liquidity
Lender, provided, however, that the Agent or the Master Collateral
Agent may release liens on Vehicles in accordance with the Master
Collateral Agency Agreement or the Collateral Agreement;
(g) affect adversely the interests, rights or
obligations of any Liquidity Lender individually in
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comparison to other Liquidity Lenders shall require the consent of
such Liquidity Lender;
(h) affect adversely the interests, rights or
obligations of either the Liquidity Agent or the Agent in its
capacity as such shall require the consent of the Liquidity Agent
or the Agent, as the case may be;
(i) amend or otherwise modify any Amortization Event
shall require the consent of each Liquidity Lender; and
(j) amend or waive any condition precedent to the
issuance of the Commercial Paper Notes set forth in Section 2.2
shall require written confirmation from each of S&P and Xxxxx'x
that such amendment or waiver will not result in the downgrading
or withdrawal of the then current ratings of the Commercial Paper
Notes by each of S&P and Xxxxx'x.
Notwithstanding the foregoing provisions of this Section 11.1, NFC
and the Liquidity Agent may, at any time and from time to time, without
the consent of the Liquidity Lenders, enter into any amendment,
supplement or other modification to this Agreement to cure any apparent
ambiguity or to correct or supplement any provision in this Agreement
that may be inconsistent with any other provision herein; provided,
however, that (i) any such action shall not have a materially adverse
effect on the interests of the Liquidity Lenders and (ii) a copy of such
amendment, supplement or other modification is furnished to each
Liquidity Lender and each Rating Agency in accordance with the notice
provisions hereof not later than ten days prior to the execution thereof
by NFC and the Liquidity Agent.
No failure or delay on the part of the Liquidity Agent, any Liquidity
Lender or the holder of any Liquidity Advance Note in exercising any
power or right under this Liquidity Agreement or any other Related
Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice
to or demand on NFC in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by the Liquidity
Agent, any Liquidity Lender or the holder of any Liquidity Advance Note
under this Liquidity Agreement or any other Related Document shall,
except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to
be granted hereunder.
SECTION 11.2. Notices. All notices, amendments, waivers, consents
and other communications provided to and party hereto
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under this Liquidity Agreement or any other Related Document shall be in
writing and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below its signature hereto or set
forth in the Liquidity Lender Assignment Agreement or at such other
address or facsimile number as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed
with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted upon
receipt of electronic confirmation of transmission.
SECTION 11.3. Payment of Costs and Expenses. NFC agrees to pay on
demand all reasonable expenses of the Liquidity Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Liquidity
Agent and of local counsel, if any, who may be retained by counsel to the
Liquidity Agent) in connection with
(a) the negotiation, preparation, execution, delivery
and administration of this Liquidity Agreement and of each other
Related Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications
to this Liquidity Agreement or any other Related Document as may
from time to time hereafter be required, whether or not the
transactions contemplated hereby or thereby are consummated,
(b) the filing, recording, refiling or rerecording of
the Collateral Agreement or the Master Collateral Agency Agreement
and/or any UCC financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any
and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the
terms hereof or of the Collateral Agreement or the Master
Collateral Agency Agreement,
(c) the preparation and review of the form of any
document or instrument relevant to this Liquidity Agreement or any
other Related Document,
(d) the transactions contemplated by this Liquidity
Agreement and any of the other Related Documents, and
(e) the preparation and negotiation of the legal
opinions of counsel to each Liquidity Lender up to $1500 per
Liquidity Lender.
NFC further agrees to pay, and to save the Liquidity Agent and the
Liquidity Lenders harmless from all liability for (i) any
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breach by NFC of any of its obligations under this Liquidity Agreement,
(ii) all reasonable costs incurred by the Liquidity Agent or the
Liquidity Lenders in enforcing this Liquidity Agreement and (iii) any
stamp, documentary or other taxes which may be payable in connection with
the execution or delivery of this Liquidity Agreement, any Borrowing
hereunder, or the issuance of the Liquidity Advance Notes or any other
Related Documents. NFC also agrees to reimburse the Liquidity Agent or
such Liquidity Lender upon demand for all reasonable out-of-pocket
expenses incurred by the Liquidity Agent or such Liquidity Lender in
connection with (x) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations and (y) the enforcement of
any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution
and delivery of this Liquidity Agreement by each Liquidity Lender and the
extension of the Liquidity Commitments, NFC hereby indemnifies and holds
the Liquidity Agent and each Liquidity Lender and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and
reasonable expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought and including, without limitation,
any liability in connection with the offering and sale of the Commercial
Paper Notes), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any
Liquidity Advance; or
(b) the entering into and performance of this Liquidity
Agreement and any other Related Document by any of the Indemnified
Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct and provided that NFC
hereby indemnifies the Indemnified Parties, in connection with
prosecuting or defending any such claims, for reasonable attorneys' fees
and expenses. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, NFC hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The indemnity set
forth in this Section 11.4 shall in no event include indemnification for
any Taxes (which
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indemnification is provided in Section 5.6). NFC shall give notice to the
Rating Agencies of any claim for Indemnified Liabilities made under this
Section.
SECTION 11.5. Survival. The obligations of NFC under Sections 5.3,
5.4, 5.5, 5.6, 11.3 and ll.4, and the obligations of the Liquidity
Lenders under Sections 10.1 and 10.2, shall in each case survive any
termination of this Liquidity Agreement, the payment in full of all the
Obligations and the termination of all Liquidity Commitments.
SECTION 11.6. Severability. Any provision of this Liquidity
Agreement or any other Related Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Liquidity Agreement or such Related Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Liquidity
Agreement and of each other Related Document are inserted for convenience
only and shall not affect the meaning or interpretation of this Liquidity
Agreement or such other Related Document or any provisions hereof or
thereof.
SECTION 11.8. Execution in Counterparts. This Liquidity Agreement
may be executed by the parties hereto in several counterparts, each of
which shall be executed by NFC and the Liquidity Agent and be deemed to
be an original and all of which shall constitute together but one and the
same agreement.
SECTION 11.9. Governing Law: Entire Agreement. THIS LIQUIDITY
AGREEMENT AND EACH OTHER RELATED DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Liquidity
Agreement, the Liquidity Advance Notes and the other Related Documents
constitute the entire understanding among the parties hereto with respect
to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Liquidity Agreement
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however,
that:
(a) NFC may not assign or transfer its rights or
obligations hereunder, other than pursuant to the Collateral
Agreement, without (i) the prior written consent of the Liquidity
Agent and all Liquidity Lenders and (ii) written
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confirmation from each of the Rating Agencies that its then
current rating of the Commercial Paper Notes will not be reduced
or withdrawn as a result thereof; and
(b) the rights of sale, assignment and transfer of the
Liquidity Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Liquidity Advances and Notes;
Participations in Loans and Notes. Each Liquidity Lender may assign, or
sell participations in, its Liquidity Advances and Liquidity Commitment
to one or more other Persons in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. (a) Any Liquidity Lender,
(i) with notice to the Rating Agencies and the Dealers
and the written consent of NFC (which consent shall not be
unreasonably withheld) and the Liquidity Agent may at any time
assign and delegate to an Eligible Liquidity Lender, and
(ii) with ten days' prior notice to the Rating Agencies,
NFC, the Liquidity Agent, the Placement Agents and the Dealers,
may assign and delegate to any of its Affiliates with a credit
rating assigned to its short-term obligations by each Rating
Agency that is not lower than the rating then assigned by such
Rating Agency to the Commercial Paper Notes, and with the written
consent of NFC (which consent shall not be unreasonably withheld)
may at any time assign and delegate to any other Liquidity Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction of
such Liquidity Lender's total Liquidity Advances and Liquidity Commitment
(which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Liquidity Lender's Liquidity
Advances and Liquidity Commitment) in a minimum aggregate amount of
$10,000,000; provided, however, that (x) any such Assignee Lender will
comply, if applicable, with the provisions contained in the last
paragraph of Section 5.6 and (y) the minimum aggregate amount of total
Liquidity Commitment and Liquidity Advances, if any, retained by such
Liquidity Lender shall be $10,000,000; provided, further, however, that,
NFC and the Liquidity Agent shall be entitled to continue to deal solely
and directly with such Liquidity Lender in connection with the interests
so assigned and delegated to an Assignee Lender until
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(A) such Assignee Lender shall have executed and
delivered to NFC and the Liquidity Agent a Liquidity Lender
Assignment Agreement, accepted by the Liquidity Agent;
(B) the processing fees described below shall have been
paid; and
(C) such Assignee Lender shall have delivered an opinion
of counsel acceptable to the Rating Agencies regarding the
enforceability of such Assignee Lender's Liquidity Commitment.
From and after the date that the Liquidity Agent accepts such Liquidity
Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be
deemed automatically to have become a party hereto and to the extent that
rights and obligations hereunder have been assigned and delegated to such
Assignee Lender in connection with such Liquidity Lender Assignment
Agreement, shall have the rights and obligations of a Liquidity Lender
hereunder and under the other Related Documents, and (y) the assignor
Liquidity Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Liquidity
Lender Assignment Agreement, shall be released from its obligations
hereunder and under the other Related Documents. Within five Business
Days after its receipt of notice that the Liquidity Agent has received an
executed Liquidity Lender Assignment Agreement, NFC shall, upon receipt
of the Liquidity Advance Notes evidencing such assignor Liquidity
Lender's Liguidity Advance and Liquidity Commitment, execute and deliver
to the Liquidity Agent (for delivery to the relevant Assignee Lender) new
Liquidity Advance Notes evidencing such Assignee Lender's assigned
Liquidity Advances and Liquidity Commitment and, if the assignor
Liquidity Lender has retained a portion of its Liquidity Advances and
Liquidity Commitment hereunder, replacement Liquidity Advance Notes in
the principal amount of the Liquidity Advances and Liquidity Commitment
so retained by the assignor Liquidity Lender hereunder (such Liquidity
Advance Notes to be in exchange for, but not in payment of, those
Liquidity Advance Notes then held by such assignor Liquidity Lender).
Each such Liquidity Advance Note shall be dated the date of the
predecessor Liquidity Advance Notes. The assignor Liquidity Lender shall
xxxx the predecessor Liquidity Advance Notes "exchanged" and deliver them
to NFC. Accrued interest on that part of the predecessor Liquidity
Advance Notes evidenced by the new Liquidity Advance Notes, and accrued
fees, shall be paid as provided in the Liquidity Lender Assignment
Agreement. Accrued interest on that part of the predecessor Liquidity
Advance Notes evidenced by the replacement Liquidity Advance Notes shall
be paid to the assignor Liquidity Lender. Accrued interest and accrued
fees shall be paid at the same time or times provided in the predecessor
Liquidity Advance Notes and
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in this Liquidity Agreement. Such assignor Liquidity Lender or such
Assignee Lender must also pay a processing fee to the Liquidity Agent
upon delivery of any Liquidity Lender Assignment Agreement in the amount
of $2,500. Such assignor Liquidity Lender and such Assignee Lender (and
not NFC) shall pay any legal expenses incurred by the Liquidity Agent in
the review, documentation and closing of such assignment. Any attempted
assignment and delegation not made in accordance with this Section
11.11.1 shall be null and void.
(b) Notwithstanding any other provision set forth in this
Liquidity Agreement, any Liquidity Lender may at any time create a
security interest in all or any portion of its rights under this
Liquidity Agreement (including, without limitation, the Liquidity
Advances owing to it and the Note held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of
the Federal Reserve System.
SECTION 11.11.2. Participations. Any Liquidity Lender may at any
time sell to one or more commercial banks or other financial institutions
(each of such commercial banks and financial institutions being herein
called a "Liquidity Participant") participating interests in any of the
Liquidity Advances, Liquidity Commitment, or other interests of such
Liquidity Lender hereunder; provided, however, that
(a) no participation contemplated in thin Section
11.11.2 shall relieve such Liquidity Lender from its Liquidity
Commitment or its other obligations hereunder or under any other
Related Document to which such Liquidity Lender is a party;
(b) each participation shall be in a minimum aggregate
amount of $10,000,000 or a smaller amount as may be agreed to by
NFC;
(c) such Liquidity Lender shall remain solely
responsible for the performance of its Liquidity Commitment and
such other obligations;
(d) NFC and the Liquidity Agent shall continue to deal
solely and directly with such Liquidity Lender in connection with
such Liquidity Lender's rights and obligations under this
Liquidity Agreement and each of the other Related Documents to
which such Liquidity Lender is a party;
(e) no Liquidity Participant, unless such Liquidity
Participant is an Affiliate of such Liquidity Lender, or is itself
a Liquidity Lender, shall be entitled to require such Liquidity
Lender to take or refrain from taking any action hereunder or
under any other Related Document, except that
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such Liquidity Lender may agree with any Liquidity Participant
that such Liquidity Lender will not, without such Liquidity
Participant's consent, take any actions of the type described in
the first proviso of Section 11.1 or clauses (a) through (g) and
clauses (i) and (j) of Section 11.1; and
(f) NFC shall not be required to pay any amount under
this Liquidity Agreement that is greater than the amount which it
would have been required to pay had no participating interest been
sold.
NFC acknowledges and agrees that, to the extent permitted by applicable
law, each Liquidity Participant, subject to clauses (d) and (f) above,
for purposes of Sections 5.3, 5.4, 5.5, 5.6, 5.8, 11.3, 11.4, 11.13 and
11.16 shall be considered a Liquidity Lender. No Liquidity Participant
shall have direct rights against NFC.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude the Liquidity Agent or any other Liquidity Lender from engaging
in any transaction, in addition to those contemplated by this Liquidity
Agreement or any other Related Document, with NFC or any of its
Affiliates in which NFC or such Affiliate is not restricted hereby from
engaging with any other Person.
SECTION 11.13. Bankruptcy Petition Against NFC. The Liquidity
Agent and each Liquidity Lender hereby covenants and agrees that, prior
to the date which is one year and one day after the payment in full of
all Commercial Paper Notes Outstanding, it will not institute against, or
join any other Person in instituting against, NFC, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
other similar proceeding under the laws of the United States or any state
of the United States. In the event that any Liquidity Lender takes action
in violation of this Section 11.13, NFC agrees, for the benefit of the
Holders, that it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such a petition by the Liquidity
Lender against NFC or the commencement of such action and raise the
defense that such Liquidity Lender has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other
defenses, if any, as its counsel advises that it may assert; and such
Liquidity Lender acting in violation of this Section 11.13 shall be
liable for and pay the costs and expenses of NFC incurred in connection
therewith. The provisions of this Section 11.13 shall survive the
termination of this Liquidity Agreement, and, with respect to the
Liquidity Agent, the resignation or removal of the Liquidity Agent and,
with
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respect to any Liquidity Lender, the replacement of such
Liquidity Lender.
SECTION 11.14. Limited Recourse to NFC; No Recourse. (a) The
Liquidity Agent and each Liquidity Lender agree that the Obligations of
NFC to the Liquidity Agent and such Liquidity Lender hereunder shall be
payable in the order and priority set forth in Section 2.01 and 5.02(b),
as applicable, of the Collateral Agreement. Such obligations shall be due
and payable only to the extent that NFC's assets and the Fronting Letter
of Credit Amount are sufficient to pay such obligations. No claims of the
Liquidity Agent or any Liquidity Lender arising under or in connection
with the Collateral Agreement are intended to be impaired or waived by
this Section 11.14 (a).
(b) Without limitation to the obligations of NFC hereunder, no
recourse shall be had for the payment of any amount owing in respect of
Liquidity Advances or for the payment of any fee hereunder or any other
obligation or claim arising out of or based upon this Liquidity
Agreement, the Liquidity Advance Notes or any other Related Document
against any stockholder, employee, officer, director, affiliate or
incorporator of NFC based on their status as such or their actions in
connection therewith. The provisions of this Section 11.14 shall survive
the termination of this Liquidity Agreement, and with respect to the
Liquidity Agent the resignation or removal of the Liquidity Agent and
with respect to any Liquidity Lender the replacement of such Liquidity
Lender.
SECTION 11.15. Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made by NFC herein
and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Liquidity Agreement or any other
Related Document shall be considered to have been relied upon by the
Liquidity Lenders and shall survive the execution and delivery of this
Liquidity Agreement and the making by the Liquidity Lenders of the
Liquidity Advances, and the execution and delivery to the Liquidity
Lenders of the Liquidity Advance Notes evidencing such Liquidity
Advances, regardless of any investigation made by the Liquidity Lenders
or on their behalf and shall continue so long as and until such time as
all Obligations hereunder and all Indebtedness under the Commercial Paper
Notes shall have been paid in full and the Liquidity Lenders no longer
have any Liquidity Commitments hereunder.
SECTION 11.16. Confidentiality. Each Liquidity Lender agrees that
it shall not disclose any Confidential Information to any Person without
the prior written consent of NFC or National, other than (a) to the
Liquidity Lender's Affiliates and their officers, directors, employees,
agents and advisors and to actual
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or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or
judicial process of which NFC or National, as the case may be, has
knowledge; provided that a Liquidity Lender may disclose Confidential
Information as required by any law, rule or regulation or judicial
process of which NFC or National, as the case may be, does not have
knowledge if such Liquidity Lender is prohibited by law from disclosing
such requirement to NFC or National, as the case may be, or (c) in the
course of litigation with NFC or National, the Liquidity Agent or any
other Liquidity Lender.
"Confidential Information" means information that NFC or National
furnishes to a Liquidity Lender on a confidential basis, but does not
include any such information that is or becomes generally available to
the public other than as a result of a disclosure by any Liquidity Lender
or other Person to which a Liquidity Lender delivered such information or
that is or becomes available to such Liquidity Lender from a source other
than NFC or National, provided that such source is not (1) known to such
Liquidity Lender to be bound by a confidentiality agreement with NFC or
National, as the case may be, or (2) known to such Liquidity Lender to be
otherwise prohibited from transmitting the information by a contractual,
legal or fiduciary obligation.
SECTION 11.17. Jurisdiction; Consent to Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST NFC OR ANY LIQUIDITY LENDER WITH
RESPECT TO THIS LIQUIDITY AGREEMENT OR ANY OTHER RELATED DOCUMENT MAY BE
BROUGHT IN ANY STATE OR (TO EXTENT PERMITTED BY LAW) FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND
DELIVERY OF THIS LIQUIDITY AGREEMENT NFC AND EACH LIQUIDITY LENDER
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS,
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGEMENT RENDERED THEREBY IN
CONNECTION WITH THIS LIQUIDITY AGREEMENT. NFC DESIGNATES AND APPOINTS,
AND EACH LIQUIDITY LENDER DESIGNATES AND APPOINTS, CT CORPORATION SYSTEM,
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AND SUCH OTHER PERSONS AS MAY
HEREAFTER BE SELECTED BY NFC OR SUCH LIQUIDITY LENDER IRREVOCABLY
AGREEING IN WRITING TO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF,
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH
SERVICE BEING HEREBY ACKNOWLEDGED BY NFC AND EACH LIQUIDITY LENDER TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO
SERVED SHALL BE MAILED BY REGISTERED MAIL TO NFC OR SUCH LIQUIDITY LENDER
SO SERVED AT ITS ADDRESS PROVIDED IN THE APPLICABLE SIGNATURE PAGE
HERETO, EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY
FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY NFC OR SUCH LIQUIDITY LENDER REFUSES
TO ACCEPT SERVICE, NFC AND EACH LIQUIDITY LENDER HEREBY AGREES THAT
SERVICE
-67-
75
UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT OF ANY LIQUIDITY LENDER OR THE AGENT TO BRING
PROCEEDINGS AGAINST NFC IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 11.18. Waiver Of Jury Trial. THE LIQUIDITY AGENT, THE
LIQUIDITY LENDERS AND NFC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JULY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS LIQUIDITY AGREEMENT OR ANY OTHER RELATED DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE AGENT, THE LIQUIDITY LENDERS OR NFC IN CONNECTION
HEREWITH OR THEREWITH. NFC ACKNOWLEDGES AND AGREES THAT IT WAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER RELATED DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LIQUIDITY AGENT AND THE
LIQUIDITY LENDERS ENTERING INTO THIS LIQUIDITY AGREEMENT AND EACH SUCH
OTHER RELATED DOCUMENT.
SECTION 11.19. Waiver of Set-Off. Each Liquidity Lender hereby
waives and relinquishes any right that it has or may have to set-off or
to exercise any banker's lien or any right of attachment or garnishment
with respect to any funds at any time and from time to time on deposit
in, or otherwise to the credit of, any account and any claims of NFC
therein or with respect to any right to payment from NFC, it being
understood, however, that nothing contained in this Section 11.19 shall,
or is intended to, derogate from the assignment and security interest
granted to the Agent under the Collateral Agreement or to the Master
Collateral Agent under the Master Collateral Agency Agreement or impair
any rights of the Liquidity Lenders, the Liquidity Agent, the Agent or
the Master Collateral Agent thereunder.
-68-
76
IN WITNESS WHEREOF, the parties hereto have caused this Liquidity
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
NATIONAL FLEET FUNDING CORPORATION
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
Facsimile No.:
Telephone No.:
CITIBANK, N.A.
as Liquidity Agent
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Group
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
77
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$75,000,000 ABN AMRO BANK N.V.
By: /s/ Xxxxxxx X. XxXxxxxx Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. XxXxxxxx Xxxxxx X. Xxxxx
Title:Group Vice President Vice President
District
Office: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx XxXxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx XxXxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
78
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$15,000,000 BANK OF IRELAND
By: /s/ X.X. Xxxx (1541) X. Xxxxxxx (3068)
---------------------------------------
Name: X.X. Xxxx X. Xxxxxxx
Title:
Domestic
Office: 000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: La Touche House
International Financial
Services Center
Xxxxxx Xxxxx Xxxxx
Xxxxxx 0
XXXXXXX
Attention: Xxxxx X'Xxxxx
Facsimile No.: 000-000-00000000
Telephone No.: 000-000-00000000
79
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$50,000,000 BANK OF MONTREAL
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: XXXX X. XXXXXXX
Title: DIRECTOR
Domestic
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
80
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$75,000,000 THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
Domestic
Office: Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
81
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$75,000,000 THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Xxxxx
---------------------------------------
Name: F. C. H. Xxxxx
Title: Sr. Manager Loan Operation
Domestic
Office: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: F.C.H. Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: F.C.H. Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
82
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$25,000,000 THE BANK OF TOKYO, LTD, NEW YORK
AGENCY
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
Domestic
Office: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Wink Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Wink Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
83
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
BANQUE ET CAISSE D'EPARGNE DE L'ETAT,
$10,000,000 LUXEMBOURG
By: /s/Xxxx XXXX Xxxx XXXXX
-------------------------------------------------
Name: Xxxx XXXX Xxxx XXXXX
Title: Sous-Directeur Inspecteur de Direction
Domestic
Office: 0 Xxxxx xx Xxxx
X-0000 Xxxxxxxxxx
Grand Duchy of Lexembourg
Attention: Xxxx Xxxxxxx
Facsimile No.: 011-352-4015-4284
Telephone No.: 000-000-0000-0000
LIBOR
Office: 0 Xxxxx xx Xxxx
X-0000 Xxxxxxxxxx
Grand Duchy of Lexembourg
Attention: Xxxx Xxxxxxx
Facsimile No.: 011-352-4015-4284
Telephone No.: 000-000-0000-0000
84
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$15,000,000 BANQUE NATIONAL DE PARIS - CHICAGO
BRANCH
By:/s/ XXXXXX XXXXXX du XXXXXX
---------------------------------------
Name: XXXXXX XXXXXX du BOCAGE
Title: Executive Vice President
and General Manager
Domestic
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
85
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$25,000,000 BAYERISCHE HYPOTHEKEN-UND WECHSEL -
BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: A.V.P.
By: /s/ X.X. Xxxxxxx
---------------------------------------
Name: X.X. Xxxxxxx
Title: FVP
Domestic
Office: Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
86
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$75,000,000 CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
Authorized Signatory
Domestic
Office: Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
87
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$50,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE
By:/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT
Domestic
Address: 00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
88
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$132,500,000 CITIBANK, N.A.
By:/s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Domestic
Office: 000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
89
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$75,000,000 COMMERZBANK AG, CHICAGO BRANCH
By:/s/ XX Xxxxxxxx
---------------------------------------
Name: XXXXXXX XXXXX XXXXXXXX
Title: Assistant Vice President
By:/s/ Xx. Xxxxxxx
---------------------------------------
Name: XX. XXXXXX X. XXXXXXX
Title: Executive Vice President
Domestic
Office: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
90
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$132,500,000 CREDIT SUISSE
By:/s/ Xxxx Xxxxxxx
---------------------------------------
Name: XXXX XXXXXXX
Title: MEMBER OF SENIOR
MANAGEMENT
By:/s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
Domestic
Office: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
91
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$25,000,000 DEN DANSKE BANK AKTIESELSKAB, NEW YORK
BRANCH
By:/s/ /s/Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title:Vice President Vice President
Domestic
Office: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
92
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$50,000,000 DRESDNER BANK AG CHICAGO BRANCH AND
GRAND CAYMAN BRANCH
By:/s/ X. Xxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
By:/s/ Xxxxxx Xxxxxx
---------------------------------------
Name: E. Xxxxxx Xxxxxx
Title: Senior Vice President
Domestic
Office: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Feixiao Dai
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Feixiao Dai
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
93
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$25,000,000 FIRST BANK NATIONAL ASSOCIATION
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Commercial Banking Officer
Domestic
Office: 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
94
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED
CHICAGO BRANCH
By:/s/ X. Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: General Manager
Domestic
Address: 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
95
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
INTERNATIONALE NEDERLANDEN (U.S.)
$150,000,000 CAPITAL MARKET, INC.
By:/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
Domestic
Office: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
96
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$50,000,000 X.X. XXXXXX DELAWARE
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Domestic
Office: 000 Xxxxxxx-Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Loan Department
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
LIBOR
Office: 0000 Xxxxxxx-Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Loan Department
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
97
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
MITSUBISHI BANK, LIMITED, CHICAGO
$50,000,000 BRANCH
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: XXXXXX XXXXXXXXX
Title: JOINT GENERAL MANAGER
Domestic
Office: 000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
98
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$25,000,000 PNC BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Vice President
Domestic
Office: 000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
99
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$50,000,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH
By:/s/ Takashi Nobuto
---------------------------------------
Name: Takashi Nobuto
Title: Deputy General Manager
Domestic
Office: 00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xx 00000
Attention: Xxxx Xxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 0000-0000
100
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
25,000,000 THE SUMITOMO BANK, LIMITED
By:/s/ X. Xxxxx
---------------------------------------
Name: XXXXXXXX XXXXX
Title: JOINT GENERAL MANAGER
Domestic
Office: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 000000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
101
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$10,000,000 SVENSKA HANDELSBANKEN
By:/s/ Xxxxx X. Xxxxxxxx Xxxxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx Senior Vice President
Title: AVP
Domestic
Office: 000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
102
LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- ----------------
$15,000,000 UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Relationship Manager
Domestic
Office: 000 X.X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LIBOR
Office: 00 X.X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
